Terms and Conditions
END USER ACCESS AGREEMENT
THIS ON-LINE LEARNING ACCESS AGREEMENT is between GP STRATEGIES, a Delaware corporation and the licensed provider of Industrial IP Advantage training, and the individual or company to whom GP Strategies has agreed to supply the on-line services and materials (“Client”).
- Limited Rights of Client. Client acknowledges and agrees that its rights under this Agreement are expressly limited to accessing and using GP Strategies’ web-based learning service accessible via the internet at the Site (and as modified from time to time) (the “Services”, as the term is further defined in the attached General Terms and Conditions) solely for the benefit of training its Learners (as the term is further defined in the attached General Terms and Conditions), and that Client does not receive any rights under this Agreement to access or use the Services for the benefit of any other third party. Any breach or default by any of the Client’s Learners (or any other person accessing or using the Services through Client or any Client account or sub-account) that would be deemed to constitute a breach or default hereunder had the Learner been the Client hereunder shall be deemed to be Client’s breach or default. Client agrees to indemnify and hold harmless GP Strategies from and against any and all costs (including, without limitation, reasonable attorneys’ fees and court costs), liabilities and damages arising out of or in connection with (i) any action or inaction of the Client’s Learner’s or other persons accessing or using the Services through Client that would be deemed to constitute a breach or default hereunder had the person been the Client or (ii) the use of the Services other than for the sole purpose permitted under this Agreement.
- The Term of this Agreement is set forth in Section 15 of the attached General Terms and Conditions and the fees payable by Client to GP Strategies are as specified in the Service Order.
- For purposes of this Agreement, the “Site” means the internet address “www.gpilearn.com” and as modified from time to time.
BY ACCEPTING THIS ONLINE LEARNING ACCESS AGREEMENT, CLIENT AGREES TO BE LEGALLY BOUND BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE ACCESS TERMS AND CONDITIONS ATTACHED HERETO THAT COMMENCE ON THE FOLLOWING PAGE, AND BY ANY OPERATING RULES OR POLICIES IMPLEMENTED FROM TIME TO TIME BY GP STRATEGIES WITH RESPECT TO THE SERVICES (COLLECTIVELY, THE "AGREEMENT").
TERMS AND CONDITIONS
- DEFINITIONS. Unless otherwise defined in the glossary in Section 22, below, capitalized terms used in this Agreement shall be defined in the context in which they are used.
- ACCESS RIGHTS. Subject to the terms and conditions of this Agreement, GP Strategies: (i) agrees to provide access to the Site and the Services as set forth in this Agreement and in the mutually executed Service Orders hereto, and (ii) grants to Client and its Learners a non-exclusive, non-transferable right to access and use the Site, solely in accordance with the rights granted hereunder to Client for its use of the Service.
- SUPPORT. During the term of this Agreement, GP Strategies agrees, at no additional cost to Client, to use commercially reasonable efforts to correct Program Errors reported by Client to GP Strategies in accordance with GP Strategies then-current Program Error resolution procedures.
- ACCEPTABLE USE POLICY. Client agrees to comply with the then-current GP Strategies AUP, privacy notices and policies, terms of service, security policies, and other applicable agreements and policies that may be established by GP Strategies from time to time with respect to the Site or any of the Services (collectively, the “Policies”). GP Strategies reserves the right to refuse to display any content or Learner Profile that is, and to refuse access to any person or entity that uses any portion of the Services to display materials that are, illegal, of insufficient quality, obscene, vulgar, offensive, dangerous or are otherwise inappropriate, or that may infringe the intellectual property or personal rights of any third party, as determined by GP Strategies in its sole discretion. The Policies are incorporated into this Agreement by this reference and are subject to the terms and conditions of this Agreement.
- FEES AND PAYMENT TERMS. Client agrees to pay to GP Strategies all amounts due, including any late payment fees, as are specified in this Agreement, a Service Order, or in an invoice. All orders placed with GP Strategies are subject to acceptance by GP Strategies. Except as expressly agreed in writing by GP Strategies, any additional or conflicting terms on any non- GP Strategies order form used by Client shall be void. If any authority imposes a duty, tax or similar amount (other than based on GP Strategies’ net income), Client agrees to pay, or to promptly reimburse GP Strategies for, all such amounts. Invoices may be delivered by GP Strategies to Client hereunder by email or other electronic means. Any amount due hereunder which is not paid by Client to GP Strategies when due will bear a late fee at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less.
- CLIENT WARRANTY. Client represents and warrants that, with regard to the access and/or use of the Services, it will not directly or indirectly engage in any activities that: (i) constitute or encourage a violation of the AUP or any applicable law or regulation, including but not limited to the violation of export control or obscenity laws; (ii) defame, impersonate or invade the privacy of any third party or entity; (iii) infringe the rights of any third party, including, without limitation, the intellectual property, business, contractual, or fiduciary rights of others; or (iv) are intended to gain, or result in gaining, unauthorized access to any systems or servers operated by or for GP Strategies.
- GP STRATEGIES’ WARRANTY. During the Term, GP Strategies warrants that the software used to operate the Services will substantially be free of Program Errors. For Program Errors Client reports to GP Strategies during the Term of this Agreement, GP Strategies agrees, as Client’s sole and exclusive remedy under the foregoing warranty, to use commercially reasonable efforts to correct such Program Errors in accordance with GP Strategies’ support obligations pursuant to Section 3.
- DISCLAIMER OF WARRANTIES. THE EXPRESS WARRANTY OF GP STRATEGIES STATED IN SECTION 7, ABOVE, IS IN LIEU OF ALL OTHER WARRANTIES BY GP STRATEGIES AND/OR ITS SUPPLIERS (REGARDLESS OF WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION, OR ANY WARRANTIES ARISING UNDER ANY OTHER LEGAL REQUIREMENT. NEITHER GP STRATEGIES NOR ANY OF ITS SUPPLIERS WARRANT THAT OPERATION OF THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR COMPLETELY SECURE, AND GP STRATEGIES HEREBY DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF. CLIENT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT ITS OWN SOLE DISCRETION AND RISK, AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES (E.G., TO ITS COMPUTER SYSTEM OR LOSS OF DATA) THAT ARISES OR RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
- CONFIDENTIALITY. Each party receiving Confidential Information shall use at least the same care to prevent disclosure of such information as such party uses with respect to its own confidential and proprietary information of like importance under similar circumstances, which shall not be less than reasonable care. Notwithstanding the foregoing, each party may disclose Confidential Information to the extent necessary pursuant to applicable federal, state or local law, regulation, court order, or other legal process, provided the receiving party has given the disclosing party prior written notice of such required disclosure and, to the extent reasonably possible, has given the disclosing party an opportunity to contest such required disclosure at the disclosing party’s expense. Notwithstanding anything to the contrary in this Agreement, Client agrees that GP Strategies shall be entitled to disclose (i) a Learner Profile to that Learner or to other persons authorized by Client or such Learner, (ii) Learner Profile data to third party(s) as required for the purposes of administering and/or monitoring the Services, and (ii) aggregate statistical and demographic information collected by GP Strategies in its operation of the Services (such as but not limited to information concerning the number of Learners using the Services); provided, that GP Strategies shall not disclose any such statistical and demographic information in a manner that directly attributes such information to Client or identifies any individual Learner without Client’s or such individual Learner’s consent.
- PRIVACY. Client agrees to keep confidential all passwords and access controls related to the Services, to restrict account use to its authorized Learners, and to notify GP Strategies promptly if Client has any reason to believe that the security of its account (or of any sub-account) has been compromised.
- INDEMNITY BY CLIENT. Client agrees to indemnify and hold harmless GP Strategies from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys' fees and court costs) relating to or arising out of or related to (i) a breach or alleged breach of this Agreement or the Policies by Client or a Learner, or (ii) Client's or any of its Learners’ use of the Services.
- INDEMNITY BY GP STRATEGIES. Subject to the provisions of this Section and Section 11, GP Strategies shall at its expense defend any claim or action against Client or Learners to the extent such claim or action is based on an allegation that the software used by GP Strategies to operate the Services infringes any third party intellectual property rights, and GP Strategies shall pay those damages and costs finally awarded against Client in such claim or action which are specifically attributable to such allegation; provided, that Client: (i) notifies GP Strategies promptly in writing of such claim or action, (ii) gives GP Strategies sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and (iii) cooperates in the defense thereof at GP Strategies’ expense. If the Services or any portion thereof becomes, or in GP Strategies’ opinion is likely to become, the subject of an allegation of infringement or misappropriation, Client shall permit GP Strategies to terminate the Services on written notice to Client and refund to Client the amount of fees paid to GP Strategies by Client hereunder, less depreciation for use, damage and obsolescence thereof (such depreciation to be calculated as an equal amount per month over the initial Term of this Agreement). THIS SECTION STATES THE ENTIRE LIABILITY OF GP STRATEGIES AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS. GP Strategies shall have no liability to Client pursuant to this Section or otherwise for any claim or action alleging infringement or misappropriation based upon (a) any abuse or misuse of the Services by Client or Learners or any part thereof; (b) any combination of the Services or any part thereof with other products, equipment, devices, software, systems or data not supplied by GP Strategies to the extent such claim would not exist except for such combination; or (c) any unauthorized alteration, modification or customization by Client or Learners of the Services or any part thereof.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND SPECIFICALLY EXCLUDING SECTIONS 11 AND 12: (A) THE PARTIES’ AGGREGATE LIABILITY ARISING FROM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES AND THE SITE, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE), WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY GP STRATEGIES FROM CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EARLIEST EVENT GIVING RISE TO THE LIABILITY, AND (B) NEITHER GP STRATEGIES NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS OR LOST PROFITS), EVEN IF GP STRATEGIES OR ANY OF ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES WITH REGARD TO THIS AGREEMENT, THE SERVICES AND ANY GP STRATEGIES’ SITE. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION ARE A FUNDAMENTAL PART OF THE BARGAIN HEREUNDER, AND THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
- OWNERSHIP. Client acknowledges that, as between Client and GP Strategies, all (a) intellectual property rights relating to or residing in the Services or the Site and (b) software and programming code that supports the operation of the Services or the Site, and any derivatives thereof or other modifications thereto, are owned solely by GP Strategies and its suppliers. As between Client and GP Strategies, all Client supplied content and all Learner Profiles will remain the property of Client. Client grants to GP Strategies the right to use such Learner Profiles in connection with the operation of the Services which may include the sharing of Learner Profile data with third party(s) as required for the purposes of administering and/or monitoring the Services, and to publish such Learner Profiles to such Learner or other persons authorized by Client or such Learner, including the right to adapt the foregoing for use with the Services.
- TERM. This Agreement will commence on the Effective Date and, unless sooner terminated, shall continue for one (1) year (the “Initial Term”). If neither GP Strategies nor Client delivers written notice to the other of its intent not to extend the term of this Agreement before the expiration of the Initial Term or any Subsequent Term, this Agreement shall automatically extend temporarily for an indefinite period until either (a) GP Strategies or Client delivers a notice terminating this Agreement or (b) GP Strategies’ receipt of payment for an additional one (1) year term or a term of such other length as agreed by GP Strategies and Client, including any period during which this Agreement was temporarily extended (a “Subsequent Term”). If this Agreement is terminated during a temporary extension period, Client shall pay GP Strategies 1/12 of the previous year’s annual fee for each month (or part thereof) of such temporary extension period. Not less than 30 days prior to the expiration of the Initial Term or any Subsequent Term, either party may propose changes to the terms and conditions applicable to a Subsequent Term, including but not limited to changes to the fees payable for the Services. If no objection in writing is provided to the other party prior to the expiration of the then-current term, the proposed changes will be applicable for the Subsequent Term. The Initial Term and any Subsequent Terms (and any temporary extensions thereof) are referred to herein as the “Term”. ”.
- TERMINATION FOR CONVENIENCE. Client may at any time terminate this Agreement in its sole and absolute discretion without cause by giving at least thirty (30) days prior written notice to the other party, provided that Client will immediately pay to GP Strategies any amounts that accrue to GP Strategies prior to the last day of the Agreement, and in no case will GP Strategies be required to refund any amounts already paid by Client to GP Strategies. Cancellations may also be subject to a cancellation charge as set forth in the applicable Service Order.
- TERMINATION FOR BREACH. Either party may terminate this Agreement by giving written notice to the other party if such other party breaches any material term of this Agreement and such breach is not cured within thirty (30) days after delivery to such other party of written notice of such breach, or, with respect to any failure by Client to pay to GP Strategies amounts due, within five (5) business days of delivery to Client of written notice of such failure.
- EFFECT OF TERMINATION. In the event of expiration or termination of this Agreement, Client will (a) immediately remove from all Internet pages operated by or for Client the link to the Site (and any other text, graphics or functionality operating as a link), and (b) at GP Strategies’ sole election, within 30 days of notice, (i) return all information to GP Strategies regarding the Services delivered by GP Strategies to Client and all copies and portions thereof, in any form whatsoever, or (ii) destroy such information and all copies and portions thereof, in any form whatsoever. Upon termination or any expiration of this Agreement, and after a 30 day waiting period, GP Strategies reserves the right to delete any and all information contained on or relating to the Site, including, without limitation, Learner Profiles and Client content. The provisions of Sections 5, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20 and 22 of this Agreement shall survive any termination or expiration of this Agreement. Termination or expiration of this Agreement shall not relieve Client of any obligation to pay amounts due that have accrued prior to the date of such termination.
- PUBLICITY. Neither party shall issue any press release, or otherwise publish the fact that the parties have entered into this Agreement, without the prior written consent of the other party; provided, that (i) Client may publicly disclose that the Site is “on GP Strategies” and, to the extent that GP Strategies shall maintain links to the publicly accessible portions of the Site on any GP Strategies Site, that the Site may be accessed from such GP Strategies Site(s) and (ii) GP Strategies may privately, subject to a non-disclosure or similar confidentiality agreement, refer to Client as a customer of the Services or as a participant on the Site.
- GENERAL. This Agreement shall be governed by the laws of the state of Maryland without regard to its conflict of law provisions. Either party’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions of the Agreement remain in full force and effect. Except as otherwise provided herein, all rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and shall not be deemed exclusive. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action against GP Strategies or its suppliers/licensors arising out of or related to the Services, the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. This Agreement is not assignable by Client without the express written consent of GP Strategies. This Agreement, including the Service Orders, invoices and Policies, is the complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous communications, whether oral or written, relating to its subject matter. This Agreement may not be modified without the express written consent of GP Strategies. Nothing in this Agreement, express or implied, is intended to confer upon any Learner or other third party any rights or remedies under or by reason of this Agreement. The section titles in the Agreement are for convenience only and have no legal or contractual effect. Notices to GP Strategies or Client may be sent to the addresses set forth herein. Neither Party shall be liable for any delay or failure due to force majeure and other causes beyond its reasonable control; however, the foregoing provision shall not apply to any of Client’s payment obligations.
- LEGAL COMPLIANCE. The Services and the Site are provided solely for lawful purposes and use. Client shall be solely responsible for, and agrees to comply with, all applicable Laws.
22. GLOSSARY. “AUP” shall mean GP Strategies’ acceptable use policy, as it may exist from time to time. “Confidential Information” shall mean any and all information related to a party that such party treats as confidential and any information relating to third parties that such party has an obligation to treat as confidential, which is disclosed by such party to the other party in connection with this Agreement, whether such information is in oral, written, graphic or electronic form; provided that, with respect to Confidential Information of Client, if such information (a) is in writing or other tangible form, such information is clearly marked as “proprietary” or “confidential” when disclosed to the receiving party; or (b) is not in tangible form, such information is identified as “proprietary” or “confidential” when disclosed and is summarized in a writing which is marked “proprietary” or “confidential” and is delivered to the receiving party within thirty (30) days after the date of disclosure. Confidential Information shall not include any information which: (i) the disclosing party expressly agrees in writing is free of any non-disclosure obligations; (ii) at the time of disclosure to the receiving party was known to the receiving party free of any non-disclosure obligations; (iii) is independently developed by the receiving party without reference to any Confidential Information of the disclosing party; (iv) is lawfully received by the receiving party from a third party having the right to so furnish such Confidential Information; or (v) is or becomes generally available to the public without any breach of this Agreement by the receiving party. Notwithstanding anything to the contrary set forth in this Agreement, the software used by GP Strategies in connection with the Services and all non-public information related to the Services, including, without limitation, the password provided by GP Strategies to Client that enables access to the Site, shall be the Confidential Information of GP Strategies and Learner Profiles shall be the Confidential Information of Client. “Learner” shall mean an individual authorized by Client to use the Site under a sub-account established or authorized by Client. Each Learner shall be evidenced by Client using unique user identification. “Learner Profiles” shall mean all Learner-related information that is used in or by the Services, such as Learner profiles, competencies, certifications and learning history and plans. “Program Error” shall mean a reproducible defect or combination of defects in the software used to operate the Services that results in a failure of the Services to function substantially in accordance with GP Strategies’ then-current end user documentation included within the Services. Program Errors shall exclude those errors caused by the negligence of Client, any modification or alteration to any part of the Services other than by GP Strategies, data which does not conform to GP Strategies’ specified data format, operator error, accident, misuse, or any other cause which, in GP Strategies’ reasonable determination, is not inherent in such GP Strategies software. “Site” shall mean the Internet site maintained by or for GP Strategies or other third parties and located at the Internet address indicated on the cover sheet to this Agreement or another Internet address specified by GP Strategies. “Services” shall mean GP Strategies’ web-based learning service that is accessible via the Internet at the Site. “Service Order” shall mean the contract embodied by GP Strategies’ proposal and Client’s purchase order (copies of which are attached to this Agreement as Exhibit 1) and by which Client orders any Services. To the extent of any conflict between the terms of this Agreement and any Service Order, the express terms of this Agreement shall prevail.