General terms and conditions for Frontlyne Cloud Usage ("FCU")
This General Terms and Conditions for Frontlyne Cloud Usage (“FCU”) governs the use of MGENLEARN CLOUD SERVICES by the organization registered by you (“CUSTOMER”), as licensed by MICROGENESIS LEARNING PRIVATE LIMITED, (“MGENLEARN”) and will be effective when accepted by CUSTOMER in connection with an FCU Order Form or Agreement. These terms and conditions combined with the FCU Order Form constitutes a complete binding legal agreement between MGENLEARN and CUSTOMER and sets forth the terms and conditions that govern the Cloud Services provided by MGENLEARN to CUSTOMER – please read carefully.
The parties agree as follows:
1. Definitions
Capitalized terms and some other terms used in this document are defined in the Glossary for the purpose of clarity and understanding.
2. Usage rights and restrictions
2.1 Grant of Rights.
MGENLEARN grants to CUSTOMER a non-exclusive, non-transferable and world-wide right to use the Cloud Service (including its customization, implementation and configuration), Cloud Materials (as applicable), Content and Documentation solely for CUSTOMER’s and its Affiliates’ business operations. Permitted uses and restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
2.2 Authorized Users.
(a)CUSTOMER may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics and volumes stated in the FCU ORDER FORM. Access credentials for the Cloud Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service. CUSTOMER is responsible for breaches of the Agreement caused by Authorized Users.
(b) The right to use mentioned in 2.1 (a) is granted only to users of the specific business unit or division or affiliate of the CUSTOMER mentioned in the FCU ORDER FORM. CUSTOMER may not permit users of its other business units or divisions or affiliates to use the Cloud Service. If the specific business unit or division or affiliate of the CUSTOMER is not mentioned in the FCU ORDER FORM, then all users of the CUSTOMER can use the Cloud Service within the Usage Metrics and volume limit mentioned in the FCU ORDER FORM. In such cases, CUSTOMER will use the Cloud Service as-is and MGENLEARN will not change or modify the Cloud Service to accommodate the needs of the CUSTOMER’s various business units or divisions or affiliates.
2.3 Acceptable Use Policy.
With respect to the Cloud Service, CUSTOMER will not:
(a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
(b) transmit any content or data that is unlawful or infringes any intellectual property rights, or
(c) circumvent or endanger its operation or security.
(d) use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.Page 2 of 14
2.4 Verification of Use.
CUSTOMER will monitor its own use of the Cloud Service and report any use in excess of the Usage Metrics and volume. MGENLEARN may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
2.5 Suspension of Cloud Service.
MGENLEARN may suspend or limit use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. MGENLEARN will promptly notify CUSTOMER of the suspension or limitation. MGENLEARN will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
2.6 Third Party Web Services.
The Cloud Service may include integrations with web services made available by third parties (other than MGENLEARN) that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third party web services are not part of the Cloud Service and the Agreement does not apply to them.
2.7 Mobile Access to Cloud Service
If applicable, Authorized Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application as well as these terms and conditions.
2.8 On-Premise Components.
The Cloud Service may include on-premise components that can be downloaded and installed (including updates) by CUSTOMER. The System Availability SLA does not apply to these components.
2.9 Third-Party Application.
If CUSTOMER installs or enables a third-party application for use with a Cloud Service, CUSTOMER (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants MGENLEARN permission to allow the provider of that third-party application to access CUSTOMER Data as required for the interoperation of the third-party application and the Cloud Service.
2.10 Free Trials.
Should CUSTOMER agree to the Agreement as part of a free trial, then this section 2.10 shall apply. When CUSTOMER first agrees to these terms, MGENLEARN allows for a thirty (30) day free trial (“Free Trial Period”) of the Cloud Services for no more than hundred (100) Authorized Users to use the Cloud Services on behalf of CUSTOMER with no payment obligation and no obligation of continued subscription past the Free Trial Period. MGENLEARN shall have the right to immediately suspend Cloud Services upon expiration of CUSTOMER’s Free Trial Period. To avoid any such interruption of Cloud Services, CUSTOMER may elect to continue using the Cloud Services after its Free Trial Period by accepting MGENLEARN’s written FCU ORDER FORM, which will set forth the Cloud Services, the Subscription Term, the number of Users, pricing, fees, and reference to these terms and conditions.CUSTOMER acknowledges and agrees that these terms and conditions will govern CUSTOMER’s use of Cloud Services during a Free Trial Period and any paid Subscription Term for which CUSTOMER accepts an FCU ORDER FORM. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE CLOUD SERVICES DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME CLOUD SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMERMUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT CUSTOMER DATA WILL BE PERMANENTLY LOST.
3. Mgenlearn responsibilities
3.1 Provisioning.
MGENLEARN provides access to the Cloud Service as described in the FCU ORDER FORM. MGENLEARN reserves the right to modify the course offerings and content of the online course library at any time.
3.2 Support.
MGENLEARN provides the following support for the Cloud Service:
(a) Onboarding Training for CUSTOMER administrator
(b) Bulk Upload of sample CUSTOMER data
(c) Sample Configurations
(d) Technical support (Mon - Fri, 9.30am - 6pm IST) through a ticket system during the Subscription term
(e) 24/7/365 support will be provided on a best effort basis
3.3 Security.
MGENLEARN uses reasonable security technologies in providing the Cloud Service. As a data processor, MGENLEARN will implement technical and organizational measures referenced in the FCU ORDER FORM to secure personal data processed in the Cloud Service in accordance with applicable data protection law.
3.4 Modifications.
(a) The Cloud Service and MGENLEARN Policies may be modified by MGENLEARN. MGENLEARN will inform CUSTOMER of modifications by email, the support portal, release notes, Documentation or the Cloud Service. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Cloud Service, which CUSTOMER may use subject to the then-current Supplement and Documentation.
(b) If CUSTOMER establishes that a modification is not solely an enhancement and materially reduces the Cloud Service, CUSTOMER may terminate its subscriptions to the affected Cloud Service by providing written notice to MGENLEARN within thirty days after receipt of Callidus’ informational notice.
3.5 Analyses.
MGENLEARN may create analyses utilizing, in part, CUSTOMER Data and information derived from CUSTOMER’s use of the Cloud Service and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Cloud Materials.
Unless otherwise agreed, personal data contained in CUSTOMER Data is only used to provide the Cloud Service and Consulting Services. Analyses may be used for the following purposes:
a) product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new MGENLEARN products and services,
b) improving resource allocation and support,
c) internal demand planning,
d) training and developing machine learning algorithms,
e) improving product performance,
f) verification of security and data integrity
g) identification of industry trends and developments, creation of indices and anonymous benchmarking
4. Customer and personal data
4.1 CUSTOMER Data.
CUSTOMER is responsible for the CUSTOMER Data and entering it into the Cloud Service. CUSTOMER grants to MGENLEARN (including MGENLEARN Affiliates and subcontractors) a nonexclusive right to process CUSTOMER Data solely to provide and support the Cloud Service.
4.2 Personal Data.
CUSTOMER will collect and maintain all personal data contained in the CUSTOMER Data in compliance with applicable data privacy and protection laws.
4.3 Security.
CUSTOMER will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service. CUSTOMER will not conduct or authorize penetration tests of the Cloud Service without advance approval from MGENLEARN.
4.4 Access to CUSTOMER Data.
(a) During the Subscription Term, CUSTOMER can access its CUSTOMER Data at any time. CUSTOMER may export and retrieve its CUSTOMER Data in a standard format. Export and retrieval may be subject to technical limitations, in which case MGENLEARN and CUSTOMER will find a reasonable method to allow CUSTOMER access to CUSTOMER Data.
(b) Before the Subscription Term expires, if available, CUSTOMER may use MGENLEARN’S self-service export tools (as available) to perform a final export of CUSTOMER Data from the Cloud Service. Alternatively, CUSTOMER may request data export through support ticket.
(c) At the end of the Agreement, MGENLEARN will delete the CUSTOMER Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
(d) In the event of third party legal proceedings relating to the CUSTOMER Data, MGENLEARN will cooperate with CUSTOMER and comply with applicable law (both at CUSTOMER’s expense) with respect to handling of the CUSTOMER Data.
5. Consulting services
If applicable, MGENLEARN will provide the Consulting Services, as mutually agreed by CUSTOMER and MGENLEARN under a Statement of Work (“SOW”); such SOW(s) shall be subject to these terms and conditions. The defined term “Consulting Services” under the Consulting Services Supplement shall mean solely those services set forth in the SOW; the defined terms “Scope Document” and “Service Description” are inapplicable to the SOW.
6. Fees and taxes
6.1 Fees and Payment.
CUSTOMER will pay fees as stated in the FCU ORDER FORM. CUSTOMER will be invoiced on Start Date (as provided in the FCU ORDER FORM) for Year One. For each Subsequent Year and Renewal Term (if any), CUSTOMER will be invoiced 30 days in advance. Notwithstanding anything to the contrary, by electing credit card payment and inputting its billing and credit card information into the MGENLEARN system (via a link sent by MGENLEARN), CUSTOMER’s credit card on file will be charged in advance the annual fees for the Subscription Term (including any agreed-to renewal term), provided that CUSTOMER remains responsible for fees. MGENLEARN will also invoice CUSTOMER (or if applicable, charge CUSTOMER’s credit card) at the time CUSTOMER adds any enhanced or additional Cloud Services. MGENLEARN may provide invoices to an email address provided by CUSTOMER. Fees for non- recurring services will be invoiced by MGENLEARN on a onetime basis and paid by CUSTOMER upon commencement of the Subscription Term. CUSTOMER will reimburse MGENLEARN for all pre-approved (by CUSTOMER) and appropriately documented travel and related expenses incurred by MGENLEARN in performing any support for the Cloud Service. After prior written notice, MGENLEARN may suspend CUSTOMER’s use of the Cloud Service until payment is made. CUSTOMER cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All signed FCU ORDER FORMs are non-cancellable and fees non-refundable.
6.2 Excess Use
CUSTOMER’s use of the Cloud Service is subject to the Agreement, including the Usage Metrics and their volume stated in the FCU ORDER FORM. Any use of the Cloud Service that exceeds this scope will be subject to additional fees. Fees accrue from the date the excess use began. MGENLEARN will invoice CUSTOMER at the end of each Subscription Term for excess use during the Subscription Term based on applicable pricing in the FCU ORDER FORM. CUSTOMER will pay the excess use Invoice within 30 days of Invoice date.
Excess Use will be calculated as follows : Each day’s excess active users will be multiplied by excess use price/user/day and summed up over the number of days in the Subscription term to get the total excess use price for the Subscription Term.
If no price for excess use is mentioned in the FCU ORDER FORM, the price will be the same as the normal use price in the FCU ORDER FORM.
6.3 Taxes.
Fees and other charges imposed under an FCU ORDER FORM will not include taxes, all of which will be for CUSTOMER’s account. CUSTOMER is responsible for all taxes. CUSTOMER must provide to MGENLEARN any valid tax-exempt certificates prior to signing an FCU ORDER FORM. If MGENLEARN is required to pay taxes, CUSTOMER will reimburse MGENLEARN for those amounts and indemnify MGENLEARN for any taxes and related costs paid or payable by MGENLEARN attributable to those taxes. If any applicable tax is deducted by CUSTOMER from payment due to MGENLEARN, then CUSTOMER will remit the same to the relevant tax authorities using MGENLEARN’s Permanent Account Number (PAN) within the prescribed period and provide MGENLEARN with the relevant tax deduction certificate.
6.4 Fee Increases
At the beginning of each renewal term, MGENLEARN may increase fees to reflect annual increases in consumer prices or costs. The increase is applied on a cumulative, year-over-year basis beginning on either the start of the preceding term or date of last increase, whichever is later. Not raising fees is not a waiver of MGENLEARN’s right to do so. MGENLEARN may increase fees if CUSTOMER elects to reduce the Cloud Service, Usage Metrics or volume for any renewal term.
6.5 Payment
CUSTOMER will pay to MGENLEARN all fees due within thirty (30) days of date of invoice. Unpaid fees will accrue interest at the maximum legal rate. CUSTOMER purchase orders are for administrative convenience and not a condition of payment. Payment is not dependent upon completion of any implementation or other services.
7. Enhancement to cloud service
(a)MGENLEARN will periodically enhance the Cloud Service through bug fixes, updates and upgrades. Such enhancements will be automatically applied to the Cloud Service and will be available to be used free of cost by the CUSTOMER within the Subscription Term.
(b)Details of enhancements made will be available on MGENLEARN website.
(c) If the enhancement is a CUSTOMER-specific feature or module developed through a separate Consulting Services Agreement between MGENLEARN and CUSTOMER, then such enhancements will come under these terms and conditions once it is included in and becomes part of the Cloud Service.
8. Term and termination
8.1 Term.
(a) CUSTOMER’s initial Subscription Term will begin on the Start Date (as provided in the applicable FCU ORDER FORM) and will be effective until the End Date (as provided therein), unless CUSTOMER is otherwise notified by MGENLEARN (“Initial Term”). “Year One” within the Initial Term is the period beginning on the Start Date and ending the day before the first anniversary of the Start Date. Each “Subsequent Year” within the Initial Term begins (commencing with the first anniversary of the Start Date) on the applicable anniversary of the Start Date and ends on the day before the next anniversary of the Start Date. If the initial Subscription Term is not provided under an FCU ORDER FORM, the Initial Term of such FCU ORDER FORM shall be one (1) Year from the Start Date or Effective Date of the FCU ORDER FORM (as provided in such FCU ORDER FORM).
(b) The Initial Term and any renewals and extensions will automatically renew for terms equal in length to the immediately preceding term (each a “Renewal Term”). Auto-renewal will not occur if CUSTOMER notifies MGENLEARN of its intention not to renew at least one month in advance of the expiration of the current term, or MGENLEARN notifies CUSTOMER of its intention not to renew at least three months prior to the expiration of the current term.
8.2 Termination.
A party may terminate the Agreement:
(a) upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty day period,
(b) as permitted under Sections 3.4(b), 9.3(b), or 10.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or
(c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 13 or 14.6.
8.3 Refund and Payments.
For termination by CUSTOMER or an 10.1(c) termination, CUSTOMER will be entitled to:
(a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and
(b) a release from the obligation to pay fees due for periods after the effective date of termination.
8.4 Effect of Expiration or Termination.
Upon the effective date of expiration or termination of the Agreement:
(a) CUSTOMER’s right to use the Cloud Service (including accessing course library and MGENLEARN Content) and all MGENLEARN Confidential Information will end,
(b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and
(c) termination or expiration of the Agreement does not affect other agreements between the parties.
8.5 Survival.
Sections 1, 6, 8.3, 8.4, 8.5, 10, 11, 12, 13, and 14 will survive the expiration or termination of the Agreement.
9. Warranties
9.1 Compliance with Law.
Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
(a) in the case of MGENLEARN, the operation of MGENLEARN’S business as it relates to the Cloud Service, and
(b) in the case of CUSTOMER, the CUSTOMER Data and CUSTOMER’s use of the Cloud Service.
9.2 Good Industry Practices.
MGENLEARN warrants that it will provide the Cloud Service:
(a) in substantial conformance with the Documentation; and
(b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.
9.3 Remedy.
CUSTOMER’s sole and exclusive remedies and MGENLEARN’S entire liability for breach of the warranty under Section 9.2 will be:
(a) the re-performance of the deficient Cloud Service, and
(b) if MGENLEARN fails to re-perform, CUSTOMER may terminate its subscription for the affected Cloud Service. Any termination must occur within three months of MGENLEARN’s failure to re-perform.
9.4 Warranty Exclusions.
The warranties in Section 9.2 will not apply if:
(a) the Cloud Service is not used in accordance with the Agreement or Documentation,
(b) any non-conformity is caused by CUSTOMER, or by any product or service not provided by MGENLEARN, or
(c) the Cloud Service was provided for no fee.
9.5 Disclaimer.
Except as expressly provided in the Agreement, neither MGENLEARN nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. CUSTOMER agrees that it is not relying on delivery of future functionality, public comments or advertising of MGENLEARN or product roadmaps in obtaining subscriptions for any Cloud Service.
10. Third party claims
10.1 Claims Brought Against CUSTOMER.
(a) MGENLEARN will defend CUSTOMER against claims brought against CUSTOMER and its Affiliates by any third party alleging that CUSTOMER’s and its Affiliates’ use of the Cloud Service infringes or misappropriates a patent claim, copyright, or trade secret right.
(b) MGENLEARN’s obligations under Section 10.1 will not apply if the claim results from (i) CUSTOMER’s breach of Section 2, (ii) use of the Cloud Service in conjunction with any product or service not provided by MGENLEARN, or (iii) use of the Cloud Service provided for no fee.
(c) In the event a claim is made or likely to be made, MGENLEARN may (i) procure for CUSTOMER the right to continue using the Cloud Service under the terms of the Agreement, or (ii) replace or modify the Cloud Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, MGENLEARN or CUSTOMER may terminate CUSTOMER’s subscription to the affected Cloud Service upon written notice to the other.
10.2 Claims Brought Against MGENLEARN
CUSTOMER will defend MGENLEARN against claims brought against MGENLEARN and its Affiliates and subcontractors by any third party related to CUSTOMER Data.
CUSTOMER will indemnify MGENLEARN against all damages finally awarded against MGENLEARN and its Affiliates and subcontractors (or the amount of any settlement CUSTOMER enters into) with respect to these claims.
10.3 Third Party Claim Procedure.
(a) The party against whom a third party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
(b) The party that is obligated to defend a claim will have the right to fully control the defense.
(c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
10.4 Exclusive Remedy.
The provisions of Section 10 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
11. Limitation of liability
11.1 Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
(a) the parties’ obligations under Section 10.1(a) and 10.2,
(b) unauthorized use or disclosure of Confidential Information,
(c) either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data,
(d) death or bodily injury arising from either party’s gross negligence or willful misconduct, or
(e) any failure by CUSTOMER to pay any fees due under the Agreement.
11.2 Liability Cap.
Subject to Sections 11.1 and 11.3, the maximum aggregate liability of either party (or its respective Affiliates or MGENLEARN subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
11.3 Exclusion of Damages.
Subject to Section 11.1:
(a) neither party (nor its respective Affiliates or MGENLEARN subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and
(b) MGENLEARN will not be liable for any damages caused by any Cloud Service provided for no fee.
11.4 Risk Allocation.
The Agreement allocates the risks between MGENLEARN and CUSTOMER. The fees for the Cloud Service and Consulting Services reflect this allocation of risk and limitations of liability.
12. Intellectual property rights
12.1 MGENLEARN Ownership.
MGENLEARN owns all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, MGENLEARN Content, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to CUSTOMER are reserved to MGENLEARN.
12.2 CUSTOMER Ownership.
CUSTOMER retains all rights in and related to the CUSTOMER Data. MGENLEARN may use CUSTOMER-provided trademarks solely to provide and support the Cloud Service.
12.3 Non-Assertion of Rights.
CUSTOMER covenants, on behalf of itself and its successors and assigns, not to assert against MGENLEARN and its Affiliates or licensors, any rights, or any claims of any rights, in any Cloud Service, Cloud Materials, Documentation, MGENLEARN Content or Consulting Services.
13. Confidentiality
13.1 Use of Confidential Information.
(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 13. CUSTOMER will not disclose the Agreement or the pricing to any third party.
(b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 13.
(c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
13.2 Exceptions.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
(b) is generally available to the public without breach of the Agreement by the receiving party,
(c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
(d) the disclosing party agrees in writing is free of confidentiality restrictions.
13.3 Publicity.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that CUSTOMER agrees that MGENLEARN may use CUSTOMER’s name in CUSTOMER listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of MGENLEARN marketing efforts (including reference calls and stories, press testimonials, site visits). CUSTOMER agrees that MGENLEARN may share information on CUSTOMER with its Affiliates for marketing and other business purposes.
14. Miscellaneous
14.1 Severability.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
14.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
14.3 Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
14.4 Regulatory Matters.
MGENLEARN Confidential Information is subject to export control laws of various countries, including the laws of India. CUSTOMER will not submit MGENLEARN Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export MGENLEARN Confidential Information to countries, persons or entities if prohibited by export laws.
14.5 Notices.
All notices will be in writing and given when delivered to the address set forth in an FCU ORDER FORM with copy to the legal department. Notices by MGENLEARN relating to the operation or support of the Cloud Service and those under Sections 3.4 and 6.1 may be in the form of an electronic notice to CUSTOMER’s authorized representative or administrator identified in the Order Form.
14.6 Assignment.
Without MGENLEARNs’ prior written consent, CUSTOMER may not assign or transfer the Agreement (or any of its rights or obligations) to any party. MGENLEARN may assign the Agreement to MGENLEARN Affiliates.
14.7 Subcontracting.
MGENLEARN may subcontract parts of the Cloud Service or Consulting Services to third parties. MGENLEARN is responsible for breaches of the Agreement caused by its subcontractors.
14.8 Relationship of the Parties.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
14.9 Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
14.10 Governing Law.
The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of India. All disputes will be subject to the exclusive jurisdiction of the courts located in Bangalore, Karnataka. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
14.11 Entire Agreement.
The Agreement constitutes the complete and exclusive statement of the agreement between MGENLEARN and CUSTOMER in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any CUSTOMER-issued purchase order, which will have no force and effect, even if MGENLEARN accepts or does not otherwise reject the purchase order.
Glossary
1.1 “Active Users” is a pricing metric that measures each User who is marked as ‘Active’ in the Cloud Service; CUSTOMER is not authorized to exceed the number of Active Users permitted in any Subscription Term as per the FCU ORDER FORM.
1.2 “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
1.3 “Agreement” means collectively, these terms and conditions along with the FCU ORDER FORM referencing these terms and conditions.. Each FCU ORDER FORM in combination with these terms and conditions Page 10 of 14constitutes a separate Agreement between CUSTOMER and MGENLEARN. If there is conflict between these terms and conditions and an FCU ORDER FORM, then the terms of such FCU ORDER FORM shall prevail, but only with respect to the Cloud Services licensed through that particular FCU ORDER FORM.
1.4 “Authorized User” means any individual to whom CUSTOMER grants access authorization to use the Cloud Service that is an employee of the business unit or division or affliate mentioned in the FCU ORDER FORM.
1.5 “Business Partner” means a legal entity that requires use of a Cloud Service in connection with CUSTOMER’s and its Affiliates’ internal business operations. These may include CUSTOMERs, distributors, service providers and/or suppliers of CUSTOMER.
1.6 “MGENLEARN Content” means Content and Learning Resources created by or for MGENLEARN, or otherwise provided by MGENLEARN to CUSTOMER. Unless excepted, “MGENLEARN Content” is included in each reference to Cloud Services in this Agreement.
1.7 “MGENLEARN Policies” means the operational guidelines and policies applied by MGENLEARN to provide and support the Cloud Service as incorporated in an FCU ORDER FORM.
1.8 “Cloud Service” means any distinct, subscription-based, hosted, supported and operated on- demand solution provided by MGENLEARN under an FCU ORDER FORM. The term “Cloud Service” includes On-Demand Service (as provided in an applicable FCU ORDER FORM), MGENLEARN Content and Learning Management Systems.
1.9 “Cloud Materials” mean any materials provided or developed by MGENLEARN (independently or with CUSTOMER’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to CUSTOMER. Cloud Materials do not include the CUSTOMER Data, CUSTOMER Confidential Information or the Cloud Service.
1.10 “Confidential Information” means
(a) with respect to CUSTOMER: (i) the CUSTOMER Data, (ii) CUSTOMER marketing and business requirements, (iii) CUSTOMER implementation plans, and/or (iv) CUSTOMER financial information, and
(b) with respect to MGENLEARN: (i) the Cloud Service, Documentation, Cloud Materials, MGENLEARN Content and analyses under Section 3.5, and (ii) information regarding MGENLEARN research and development, product offerings, pricing and availability.
(c) Confidential Information of either MGENLEARN or CUSTOMER also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
1.11 “Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by MGENLEARN employees or subcontractors as described in any FCU ORDER FORM and which are governed by the Supplement for Consulting Services or similar agreement.
1.12 “Content” means courseware content that is created or viewed within a Learning Management System (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship).
1.13 “CUSTOMER Content” means courses proprietary to CUSTOMER or a third party that CUSTOMER creates, launches or administers in the LMS.
1.14 “CUSTOMER Data” means any content, materials, data and information that Authorized Users enter into the production system of a Cloud Service or that CUSTOMER derives from its use of and stores in the Cloud Service (e.g. CUSTOMER-specific reports). CUSTOMER Data and its derivatives will not include MGENLEARN Confidential Information.
1.15 “Documentation” means MGENLEARN then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Cloud Service which is made available to CUSTOMER with the Cloud Service.
1.16 “Learning Management System” or “LMS” means a cloud-based learning management system through which a learner can register and participate in Content, and a learning manager can administer and view reports on the learner’s activities; the LMS may enable CUSTOMER to create and view CUSTOMER Content. LMS means the proprietary learning management system that MGENLEARN provides to CUSTOMER under an FCU ORDER FORM. Unless excepted, LMS is included in each reference to Cloud Services in this Agreement.
1.17 “Learning Resources” means (other-than subscribed course) items that CUSTOMER may download from the course library, or that MGENLEARN may otherwise provide, such as ancillary learning material like workbooks, graphics, or course-completion promotional collateral that CUSTOMER may use pursuant to this Agreement to supplement subscribed courses in its internal curriculum to its learners. Unless excepted, “Learning Resources” is included in each reference to MGENLEARN Content in this Agreement.
1.18 “Named Users” means a specific User that has login access to Cloud Services during the annual term.
1.19 “FCU ORDER FORM” means the Master Services Agreement along with Schedules for a Cloud Service that references these terms and conditions. The term “FCU ORDER FORM” includes but is not limited to Schedule, Sales Order, Order, Renewal Order or similar so-titled documents, along with all of its exhibits and attachments, which is issued pursuant to or refer to these terms and conditions and is executed by CUSTOMER and MGENLEARN.
1.20 “Subscription” means access to or usage of Cloud Service.
1.21 “Subscription Term” means the term of a Cloud Service subscription identified in the applicable FCU ORDER FORM, including all renewals.
1.22 “Supplement” means as applicable, the supplemental terms and conditions that apply to the Cloud Service and that are incorporated in an FCU ORDER FORM.
1.23 “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a Cloud Service as set forth in an FCU ORDER FORM.
1.24 “Users” shall mean any person, third party, or entity that has login access to Cloud Services
