ACADEMIES SUBSCRIPTION SERVICES TERMS AND CONDITIONS
By clicking “yes,” “I accept” or comparable language, or accessing and using the Services, you have agreed to these terms and conditions. These terms and conditions (“Agreement”) govern your use of the Services, and is a binding agreement between Loftware, Inc. (“Loftware”) and you (“Company”). This Agreement shall be binding upon and inure to the benefit of Loftware’s and Company’s respective successors and permitted assigns. Company shall not assign or transfer this Agreement or any rights granted hereunder without the prior written consent of Loftware.
1. Scope of Agreement
The access and use rights granted to Company in respect of the Services may be exercised by both Company and its Affiliates (collectively, “Customer”). Company acknowledges and agrees that it is responsible and liable for compliance by its Affiliates and their Authorized Users with all of the terms and conditions set forth in this Agreement.
2. Initial Purchase; Purchase Orders
Customer’s initial purchase of Services is set forth on the related quotation, proposal or invoice. At any time after the date this Agreement is accepted by Customer, Customer may purchase additional Services by submitting to Loftware a written, electronic or facsimile purchase order containing the information necessary to identify the Services intends to purchase (each, a “Purchase Order”). All Services ordered via Purchase Orders are and will be subject to the terms and conditions of this Agreement. In no event shall Loftware’s acceptance of a Purchase Order modify or supplement the terms of this Agreement.
(a) Access and Use
Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Loftware hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely by Authorized Users for the Permitted Use in accordance with the terms and conditions herein. Loftware shall provide Customer with access to the Services on the Access Date.
(b) Installed Applications
To the extent applicable, Loftware will electronically deliver the Installed Applications by making the Installed Applications available for downloading by Customer and by providing any necessary Access Credentials. Unless otherwise provided in a professional services statement of work (“SOW”), Customer is solely responsible for installing any Installed Applications on Customer systems.
(c) Documentation License
Loftware hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation provided by Loftware, as applicable, during the Term solely for Customer’s internal business purposes in connection with its authorized use of the Services.
Loftware may from time to time in its discretion engage third parties to provide or perform any aspect of the Services, including, without limitation, the hosting component of the Services, as applicable.
(e) Suspension or Termination of Services
Loftware may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if:
Loftware receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Loftware to do so; or
(Loftware believes, in its sole discretion, that:
Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement,
Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services, or
this Agreement expires or is terminated. This Section 3(e) does not limit any of Loftware’s other rights or remedies, whether at law, in equity, or under this Agreement.
4. Use Restrictions
Customer shall not, and shall not permit any Authorized User or other person to, access or use the Services or Documentation except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
copy, modify, or create derivative works or improvements of the Services or Documentation;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Documentation to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
bypass or breach any security device or protection used by the Services or Documentation or access or use the Services or Documentation other than by an Authorized User through the use of his or her own then valid Access Credentials;
input, upload, transmit, or otherwise provide to or through the Services, any information or materials that
are unlawful or facilitate illegal activity, or
promote or contain, transmit, or activate any viruses or other malicious software code;
damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services or Loftware’s provision of services to any third party, in whole or in part;
(remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Documentation, including any copy thereof;
access or use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable laws or regulations;
access or use the Services or Documentation for purposes of competitive analysis of the Services, or the development, provision, or use of a competing software service or product; or
otherwise access or use the Services or Documentation beyond the scope of the authorization granted under Section 3.
5. Fees and Payment
Customer shall pay Loftware the fees set forth in all related invoices (“Fees”) in accordance with this Section 5.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, provincial, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Loftware’s income.
Customer shall pay all Fees and Reimbursable Expenses within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in U.S. dollars. Customer shall make payments to the address or account specified by Loftware in writing from time to time.
(d) Late Payment
If Customer fails to make any payment when and as due then, in addition to all other remedies that may be available:
Loftware may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;
Customer shall reimburse Loftware for all costs incurred by Loftware in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
if such failure continues for ten (10) days following written notice thereof, Loftware may suspend access to the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.
(e) No Deductions or Setoffs
All amounts payable to Loftware under this Agreement shall be paid by Customer to Loftware in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
(f) Fee Increases
Loftware may increase Fees no more than once for any Renewal Term, by providing written notice to Customer at least forty-five (45) calendar days prior to the commencement of such Renewal Term, and Customer’s Fee obligations will be deemed amended accordingly.
(a) Confidential Information
In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6(b), “Confidential Information” means information in any form or medium (whether oral, written, electronic, or otherwise) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the generality of the foregoing, the Services and Documentation are the Confidential Information of Loftware.
Confidential Information does not include information that:
was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement;
was or becomes generally known by the public other than by the Receiving Party’s or any of its personnel’s or representatives’ noncompliance with this Agreement;
was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
(c) Protection of Confidential Information
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
except as may be permitted by and subject to its compliance with Section 6(d), not disclose or permit access to Confidential Information other than to its personnel or subcontractors who:
need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement,
have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6(c), and
are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6;
safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information of which the Receiving Party becomes aware and reasonably cooperate with the Disclosing Party to prevent further unauthorized use or disclosure.
(d) Compelled Disclosures
If the Receiving Party or any of its personnel or representatives is compelled by applicable law or an order from a court, regulatory agency or other governmental authority having competent jurisdiction to disclose any Confidential Information then, to the extent legally permitted, the Receiving Party shall:
promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6(c); and
provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6(d), the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
7. Proprietary Rights
(a) Services and Documentation
All right, title, and interest in and to the Services and Documentation, including all intellectual property rights therein, are owned by and will remain with Loftware. Customer has no right, license, or authorization with respect to the Services or Documentation except as expressly set forth in Sections 3(a) and 3(c), in each case subject to Section 4. All other rights in and to the Services and Documentation are expressly reserved by Loftware.
(b) Customer Data
As between Customer and Loftware, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted in Section 7(c).
(c) Consent to Use Customer Data
Customer hereby grants all such rights and permissions in or relating to Customer Data as are necessary for Loftware or its subcontractors to perform their obligations hereunder.
8. Representations and Warranties
(a) Loftware Representations and Warranties
Loftware represents and warrants to Customer that the Services, when accessed and used by Customer and its Authorized Users in accordance with this Agreement, will conform to the Documentation in all material respects (the “Services Warranty”). If the Services do not comply with the Services Warranty and such non-compliance is reported by Customer to Loftware during the Term, Loftware will use commercially reasonable efforts to repair the Services. The Services Warranty (as applicable) specifically exclude defects resulting from Customer abuse, unauthorized repair by Customer, modifications or enhancements to the Services by Customer, or any use of the Services by Customer in violation of this Agreement. The remedies set forth in this Section 8(a) ARE Customer’s exclusive remedies, and loftware’s SOLE AND exclusive obligations AND LIABILITY, for any breach by loftware of the Services Warranty (as applicable).
(b) Customer Representations and Warranties
Customer represents and warrants to Loftware that: (i) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Loftware and processed, stored and maintained in accordance with this Agreement as applicable, no portion of the Customer Data will infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; and (ii) the individual accepting this Agreement on Customer’s behalf is fully authorized to do so and, when so accepted, this Agreement will constitute a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.
(c) Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8(a), LOFTWARE DISCLAIMS AND REJECTS ALL REPRESENTATIONS AND WARRANTIES, AND ALL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS.” LOFTWARE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR THE RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE ERROR FREE.
9. Limitations of Liability
(a) Exclusion of Damages
IN NO EVENT WILL LOFTWARE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER LOFTWARE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) Cap on Monetary Liability
IN NO EVENT WILL THE AGGREGATE LIABILITY OF LOFTWARE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LOFTWARE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(c) Essential Basis
Customer acknowledges that the disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including the economic terms, would be substantially different.
10. Term and Termination
(a) Initial Term
Unless as otherwise set forth in a definitive purchasing agreement between the parties, the initial term of this Agreement commences as of the Access Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for a period of one (1) years (the “Initial Term”).
(b) Renewal Term
Unless as otherwise set forth in a definitive purchasing agreement between the parties, this Agreement will automatically renew for additional one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
In addition to any other express termination right set forth elsewhere in this Agreement:
(Loftware may terminate this Agreement, effective on written notice to Customer, if Customer (1) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Loftware’s delivery of written notice thereof, or (2) breaches any of its obligations under Section 4 or Section 6;
(either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches any material term or condition of this Agreement, and such breach (1) is incapable of cure, or (2) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;
either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party
becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due,
files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law,
makes or seeks to make a general assignment for the benefit of its creditors, or
applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and
(d) Effect of Termination or Expiration
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate and each party will promptly return to the other, or destroy, all Confidential Information of the other party then in its possession or under its control;
(Customer shall immediately cease all use of any Services and Documentation;
notwithstanding Section 10(d)(1) or anything else to the contrary in this Agreement, with respect to information and materials then in its possession or control,
the Receiving Party may retain the Disclosing Party’s Confidential Information in its then current state and solely to the extent and for so long as required by applicable law,
Loftware may retain Customer Data in its backups, archives, and internal business and disaster recovery systems until such Customer Data is deleted in the ordinary course, and
all information and materials described in this Section 10(d)(3) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
Loftware may disable all Customer and Authorized User access to the Services and Documentation; and
to the extent applicable, Customer will delete all Installed Applications from Customer systems and any other systems controlled by Customer.
(e) Payment of Fees Upon Certain Terminations
In the event Loftware terminates this Agreement for cause pursuant to Section 10(c)(1) or Section 10(c)(2), all Fees that would have become payable had the Agreement remained in effect until expiration of the then-current term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Loftware’s invoice therefor.
This Agreement is governed by the laws of the State of New Hampshire, without regard to its conflicts of laws principles. The parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act. No provision of this Agreement shall be amended, modified, supplemented or waived except by written agreement signed by the parties hereto. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter set forth herein, and supersedes any prior or contemporaneous discussions, understandings, orders, requests or statements regarding such subject matter. In the event of a dispute between Loftware and Customer where the parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to binding arbitration under the expedited commercial arbitration rules of the American Arbitration Association (“AAA”) then in effect; provided, however, that Loftware shall be entitled to avail itself of injunctive and other equitable rights and remedies in a court of competent jurisdiction in order to protect its rights and interests. Arbitrations shall take place in Portsmouth, New Hampshire. There shall be one (1) arbitrator mutually agreed to by both parties (or, if the parties are unable to agree on a single arbitrator, the arbitrator shall be chosen in accordance with the rules of the AAA); such arbitrator shall have experience in the area of software technology. After the hearing, the arbitrator shall decide the controversy and render a written decision setting forth the issues adjudicated, the resolution thereof and the reasons for the award. The award of the arbitrator shall be conclusive. Payment of the expenses of arbitration, including attorneys’ fees and the fee of the arbitrator, shall be assessed by the arbitrator based on the extent to which each party prevails. Loftware shall not be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes outside the direct control of Loftware, including, but not limited to, third-party computer or telecommunications equipment or software failures, default by subcontractors or suppliers, acts of God or of the public enemy, domestic or foreign governmental acts, labor, fire, flood, epidemic, strikes, and/or freight embargoes. The provisions of this Agreement which by their sense and context are intended to survive the termination of this Agreement shall so survive and continue to bind the parties.
APPENDIX A – DEFINITIONS
For purposes of this Agreement, each word or phrase listed below shall have the meaning designated. Other words or phrases used in this Agreement may be defined in the context in which they are used, and shall have the respective meaning there designated:
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Access Date” means the date on which Customer is first able to access the Services.
“Affiliate” of an entity means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services as Learners under the rights granted to Customer pursuant to this Agreement.
“Business Days” means every calendar day, except all Saturdays, Sundays and holidays observed by the United States federal government.
“Customer Data” means information, data, and other content, in any form or medium, which is entered or uploaded into the Services by or on behalf of Customer.
“Documentation” means any manuals, instructions, or other documents or materials that Loftware provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Learner” means the number of annual training software subscriptions that Customer purchases from Loftware that Customer’s Authorized Users may utilize for the Permitted Use.
“Installed Applications” means Loftware’s proprietary and licensed computer programs that are installed on and will operate on Customer systems in connection with the Services.
“Permitted Use” means use of the Services by Authorized Users for the benefit of Customer in the ordinary course of its internal business operations, but only for that number of Learners purchased by Customer.
“Services” means (i) the Loftware training academy software-as-a-service offerings purchased by Customer as described in applicable quotation(s), proposal(s) and/or invoice(s) and (ii) to the extent applicable, the Installed Applications.