THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (THE “CUSTOMER”) AND TRAINHQ, INC. (“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. 

1. Subscription

   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. 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 30 (thirty) days before the end of the relevant Subscription Term or the Parties mutually agree on a different Subscription Term. 

      
      

2. Restrictions on use

   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.

   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. 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.

      
      

   4. Customer Obligations

      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. 

      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.  

2. Support

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. 

   
   

2. Availability and Technical Support. TrainHQ will provide telephone support for the Services to Customer during the hours of 9:00am to 5:00pm Eastern Standard Time, Monday through Friday, excluding federal 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.

3. Fees and Payment Terms

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 all applicable sales, use, excise and similar taxes.  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 prior to the renewal of the next subscription period.

   
   

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 ACH payments or check unless otherwise directed by TrainHQ.

   
   

3. Overdue Payments. Undisputed overdue payments shall bear interest at the lesser of 1% per month or the maximum rate allowed under applicable law.  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”).

4. Intellectual Property Rights, Ownership and Title

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.

   
   

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.

   
   

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.

   
   

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.  

   
   

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.

5. Third Party Content

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. 

6. Confidentiality

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.

   
   

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.

   
   

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.

7. Security and Data Protection

1. 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.

   
   

2. 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. 

8. Term and Termination

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.  

   
   

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.

   
   

3. Termination for Insolvency. Either Party may terminate the Agreement immediately if the other Party becomes insolvent.

   
   

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.

   
   

5. 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. 

9. Warranties

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. 

   
   

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.

3. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRAINHQ PROVIDES THE SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO, EXPRESS OR IMPLIED OR STATUTORY OR OTHER WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE AND DOES NOT GUARANTEE THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR COMPLETELY SECURE.   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.  TRAINHQ HAS NO OBLIGATION TO PROVIDE SECURITY OTHER THAN AS STATED IN THIS AGREEMENT.  CUSTOMER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL OF CUSTOMER DATA, CONTENT AND TRAINING PROGRAMS. 

10. Limitations of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, GOODWILL, DATA OR DATA USE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TRAINHQ WILL NOT BE LIABLE FOR: (A) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF SUBSCRIPTION OR, (II) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; OR (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TRAINHQ’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY TRAINHQ IN AN AMOUNT NOT TO EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TRAINHQ UNDER THIS AGREEMENT DURING THE 12 (TWELVE) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO THE CLAIM.

1. GENERAL PROVISIONS
   

   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.

   2. Governing law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties. 

   3. Arbitration. Any dispute or claim arising out of or in connection with this Agreement will be finally settled by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator appointed in accordance with said rules.  The arbitrator shall apply Delaware law, without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution of any dispute.  The location of the arbitration shall be Dallas, Texas.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision. 

   4. 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 for which the United States has a trade embargo, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.  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.

   5. 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 13.5 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.  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.

   6. 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.  

   7. 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.

   8. 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.

   9. 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.

   10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

   11. 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.

       
       

   12. 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. 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.

   14. 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.

   15. Survival. Sections 3.2 (“Restrictions of Use”), 6 (“Intellectual Property Rights, Ownership and Title”), 7 (“Third Party Content”), 8 (“Confidentiality”), 10.4 (“Effect of Termination”), 11.3 (“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. 

   16. Government Customers.  As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the Services provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.”  Consistent with DFAR section 227.7202, FAR section 12.212 and other sections, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.  Any technical data provided that is not covered by the above provisions shall be deemed “technical data-commercial items” pursuant to DFAR section 227.7015(a).  Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR section 227.7015(b).