LearnUpon Terms of Service

Effective: November 13 2023

PLEASE READ THIS CAREFULLY BEFORE ATTEMPTING TO ACCESS OR USE THE LEARNUPON PLATFORM. THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (THE “CUSTOMER” OR “YOU”), AND LEARNUPON LIMITED. (“LEARNUPON” OR “WE”). THIS AGREEMENT GOVERNS YOUR USE OF THE LEARNUPON PLATFORM AND RELATED SERVICES. BY ACCEPTING THIS AGREEMENT, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THE PERSON EXECUTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. YOUR AFFILIATES MAY BECOME PARTY TO THIS AGREEMENT BY EXECUTING AN ORDER FORM HEREUNDER, PROVIDED THAT YOU AGREE THAT YOU REMAIN RESPONSIBLE FOR SUCH AFFILIATES.

1. Definitions.

For purposes of this Agreement:

1.1. “Account” means Your Platform account and profile, accessed using Your unique username and password.

1.2. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.3. “Content” consists of all data, software, and information that You or Your End Users post or upload to, or disseminate, distribute, or transmit through, the Platform, Portal, or Supplemental Services, including all personal data loaded to the Platform by You or Your authorized End Users.

1.4. “Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016/679 (“GDPR”), any local legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time. The terms “controller”, “processor”, “process” and “personal data” shall have the meanings given to those terms in such data protection laws and regulations.

1.5. “Documentation” means the user manuals, help guides, whether in print, electronic form, help videos or on-line help functions for the Platform and/or Supplemental Services made generally available by LearnUpon to its customers, as may be updated from time to time.

1.6. “End User” means any individual authorized by You to access and use Your Top Level Portal or one or more of Your Sub-Portals. “End User”, as defined, is further limited to only the maximum number of End Users permitted by Your Plan.

1.7. “Fees” means the fees payable by You in respect of the Plan and, as applicable, Supplemental Services, to which You have subscribed as set out in the Order Form, subject to change as provided for in Section 8.2 (Updated Fees).

1.8. “Intellectual Property” or “Intellectual Property Rights” means all intellectual property rights, including all copyright, patent, trade secret, trademark, moral, termination, authorship, rights of publicity, privacy and other proprietary rights.

1.9. “Optional Third-Party Content” means third-party software applications, data feeds or products and services that are licensed directly by Customer from third parties (other than LearnUpon) and that interoperate with the Platform.

1.10. “Order Form” means the documents for placing Plan orders for the Platform and/or Supplemental Services entered into between You and LearnUpon from time to time. Order Forms may be documents in written or electronic form. Order Forms shall be deemed incorporated herein by reference.

1.11. “Plan” means the LearnUpon subscription plan to which You have subscribed set out in the Order Form.

1.12. “Platform” means the online learning platform services accessible through https://app.learnupon.com (or any successor or alternative sites LearnUpon may inform You of or You may be aware of), including all Documentation and software in or accessible through the Platform, excluding Your Content. “Platform“ excludes any Optional Third-Party Content.

1.13. “Portal” means the Top-Level Portal and Sub-Portals, together.

1.14. “Revisions” means any updates, upgrades, revisions, changes, or alterations to the Platform and/or Supplemental Services and their features and functionality.

1.15. “Subscription Start Date” means the date on which Your subscription to the Platform and, if applicable, Supplemental Services, starts, as set forth in an Order Form.

1.16. “Subscription Period” means the period of time for which You have subscribed to the Platform and, if applicable, Supplemental Services, as set forth in an Order Form. A commitment to a multi year subscription shall constitute one Subscription Period.

1.17. “Sub-Portal” means the one or more web based client portals (each with its own unique login domain) established by You on the Platform for the purposes of delivering Content, training, and courses to End Users. Your Plan specifies the maximum number of Sub-Portals You may create.

1.18. “Supplemental Services” means any products, services, or software components that interoperate with the Platform and are purchased by You from LearnUpon. Supplemental Services may be provided or otherwise made available by a third party (i.e., a party other than LearnUpon). Access to such Supplemental Services is subject to this Agreement and Supplemental Terms.

1.19. “Supplemental Terms” means the additional terms and conditions between You and LearnUpon that govern Your use of Supplemental Services.

1.20. “Support Services” means LearnUpon’s support services offered with Your Plan, as more particularly described in the Support Services at https://www.learnupon.com/support-services/ and incorporated herein by reference.

1.21. “Top-Level Portal” means the top level portal You establish when You create an account on the Platform to deliver Content, training and courses to End Users.

2. Use of Platform.

2.1. Provision of the Platform. Subject to the terms and conditions of this Agreement and solely to the extent permitted by Your Plan, LearnUpon hereby grants You a limited, non-exclusive, non-transferable right to access and use the Platform to:

2.1.1. create and upload Content to Your Top-Level Portal and Sub-Portals;

2.1.2. run courses and training for End Users from Your Top-Level Portal for Your internal business purposes or, if expressly permitted to do so by Your Plan, on a commercial basis (i.e., by charging End Users through the E-Commerce Module); and

2.1.3. sublicense the right to access and use Your Top-Level Portal and Sub-Portal(s) to Your End Users.

2.1.4. If  You purchase Supplemental Services designed to interoperate with the Platform, You agree that You and Your End Users will use such Supplemental Services solely for their intended purpose, and as more particularly described Supplemental Services Terms at https://www.learnupon.com/supplemental-services-terms-and-conditions/ and incorporated herein by reference.

3. Use Restrictions.

3.1. Except as expressly permitted by the terms of this Agreement, neither You nor Your End Users shall:

3.1.1. copy, modify, adapt, translate, distribute, sub-license, market, lease, make available, resell, make derivative works of, disassemble, reverse compile or reverse engineer or otherwise reduce to human-perceivable form any part of the Platform, Supplemental Services or LearnUpon Intellectual Property; or discover or disclose the source code, methods and concepts embodied therein, except as may be allowed by any applicable law notwithstanding contractual prohibition;

3.1.2. store, distribute, post, upload or transmit any Content through the Platform (including Your Sub-Portals) or Supplemental Services that is or is reasonably perceived to be infringing, unlawful or in violation of third-party privacy rights;

3.1.3. introduce any virus, worm, malware, spyware, Trojan horse or other harmful or malicious code to the Platform (including Your Sub-Portals) or Supplemental Services;

3.1.4. intentionally interfere with or disrupt the integrity or performance of the Platform or Supplemental Services;

3.1.5. access and use the Platform or Supplemental Services in order to (i) build a product or service competitive with the Platform, (ii) copy any ideas, features, functions or graphics of the Platform, or (iii) determine whether the Platform is within the scope of any patent;

3.1.6. use the Platform or Supplemental Services for the purposes of direct marketing or promotion to anyone other than Your End Users and their customers;

3.1.7. suggest or state that LearnUpon endorses or supports Your Content or any training or other course You are running;

3.1.8. use the Platform or Supplemental Services to store or transmit (i) personal data which could be considered to be special category data pursuant to the Data Protection Legislation, as defined by the GDPR, (ii) any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 as amended and supplemented; (iii) financial information protected under the Gramm-Leach-Bliley Act; or (iv) information that is subject to Payment Card Industry Data Security Standards; (v) Content that could otherwise be subject to governmental regulation or may require security measures beyond those specified by LearnUpon for the Platform or Supplemental Services; or

3.1.9. use the Platform or Supplemental Services for any illegal, unauthorized, or otherwise improper purposes.

4. Your Responsibilities.

4.1. Usage Limits. You are responsible for ensuring that You do not exceed the usage and other limits specified by Your Plan. You shall not allow any End User profile to be used by more than one individual person unless it has been reassigned in its entirety to a different individual.

4.2. Account. You are responsible for all use of Your Account, including all Content, regardless of whether undertaken by You, Your employees or a third-party (including Your contractors, agents or End Users). You must contact LearnUpon immediately if You know or suspect Your Account has been accessed by an unauthorized third-party or used in breach of this Agreement.

4.3. Applicable Laws. You shall comply with all applicable laws, regulations, rules, and codes with respect to activities relating in any way to Your use or exploitation of the Platform and the Supplemental Services.

5. Acknowledgements.

5.1. Relationship with End Users. Any transactions or terms in relation to the use of the Portal by Your End Users is solely between You and each End User. Other than as specifically provided for herein, neither LearnUpon nor its suppliers have any responsibility or liability to Your End Users and nothing herein confers a benefit on any person other than You.

5.2. Training Materials. You are solely responsible for providing all training, teaching, courses, instruction and other Content for Your Portals and End Users. All Content is uploaded at Your own risk and LearnUpon recommends that You regularly back-up all Content uploaded onto the Platform.

5.3. Equipment. You and Your End Users are solely responsible for supplying all equipment, Internet access and bandwidth needed to properly access and use the Platform and/or Supplemental Services.

5.4. E-commerce Module. Payments by End Users to You through the e-commerce module available via the Platform are processed by a third party payment provider. LearnUpon has no liability for any claims arising out of or in connection with the processing or failure to properly process any End User payments by the third-party payment processor. You are responsible for any transactions made through the E-Commerce module including compliance with any VAT and/or sales tax liability that may apply.

5.5. Content. LearnUpon does not monitor any Content on the Platform (including Your Sub Portals) or Supplemental Services but reserves the right (but is not required) to remove, delete and/or destroy any Content that is in breach of this Agreement.

5.6. White Labelling. Certain LearnUpon Plans allow You to “white-label” Your Portals. If expressly permitted to do so by Your Plan, You are granted the right to brand Your Portals on a white-labelling basis, however LearnUpon may include a hypertext link and/or icon logo with the words “Powered by LearnUpon” (or equivalent) at the foot of each page of the Platform.

5.7. No High Risk Activities. You may not use the Platform if failure or interruption of the Platform could lead to death, serious bodily injury or property or environmental damage.

5.8. Optional Third-Party Content. If Customer installs, enables or accesses Optional Third-Party Content use with the Platform or Supplemental Services, Customer (i) is solely responsible for obtaining and maintaining the license or other rights necessary for the use of such Optional Third Party Content hereunder and (ii) hereby consents to the disclosure by LearnUpon (including its third party vendors) to such provider for the interoperation of the Optional Third-Party Content with the Platform and, if applicable, Supplemental Services. Third-party terms and privacy practices govern Customer’s use of Optional Third-Party Content. To the extent Customer elects to use Optional Third-Party Content, Customer bears all risk associated with the use of, or reliance upon, the Optional Third-Party Content. Neither LearnUpon nor its third-party vendors shall be responsible for any disclosure, modification, deletion, loss, or unauthorized use of Content arising from Your acts or omissions associated with use of Optional Third Party Content installed, enabled, or accessed by Customer and its End Users. LearnUpon is not responsible for the performance, operation, or continued availability of any Optional Third Party Content or any Customer request for refund, credit, or other compensation relating to the Optional Third-Party Content, which Customer uses at its own risk.

6. Support.

6.1. You are entitled to LearnUpon’s support services offered with Your Plan as more particularly described in the Support Services at https://www.learnupon.com/support-services/ which are incorporated by reference to these Terms.

7. Revisions.

7.1. LearnUpon reserves the right to make Revisions to the Platform and Supplemental Services. Any such Revisions shall be considered part of the Platform or Supplemental Terms, as applicable, for all purposes of this Agreement.

8. Payment.

8.1. Fees. You agree to pay all Fees in accordance with the Plan You selected. You may not withhold payment or claim any right of set-off without prior written consent.

8.2. Updated Fees. Plan Fees and Supplemental Services Fees may change over time, however, LearnUpon will give You thirty (30) days prior notice, generally via email. If LearnUpon revises Your Plan Fees or Supplemental Services, such new Fees shall not apply to the Subscription Period for which You have already subscribed but shall apply to any renewal Subscription Period commencing after the effective date of change in Fees.

8.3. Payment Methods. You will provide LearnUpon with a valid payment method reasonably acceptable to LearnUpon. LearnUpon will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt. If You enroll in the Automatic Bill Payment option, You authorize LearnUpon to charge Your credit card for the Fees for the initial Subscription Period and any renewal Subscription Period(s).

8.4. Taxes. All Fees are exclusive of any taxes and duties such as value added tax, sales-and-use tax, import or other duties. You are responsible for paying all taxes and duties at the appropriate rate and in the manner for the time being provided by applicable law.

8.5. Overdue Fees. If You fail to pay LearnUpon all Fees by thirty (30) days after the due date, LearnUpon may, in its sole discretion, without limiting its other rights and remedies, (a) disable access for You and End Users to some or all of the Platform, Supplemental Services and/or terminate this Agreement; (b) delete and remove Your top Level Portal and Sub-Portal(s) and/or Content. LearnUpon will give You at least seven (7) days’ prior written notice that Your account is overdue, before suspending access to the Platform and/or Supplemental Services. LearnUpon shall not exercise its rights under this Section 8.5 if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

9. Term.

9.1. The term of this Agreement shall commence on the Subscription Start Date and end upon the expiration or termination of all Order Forms issued hereunder. Unless terminated in accordance with this Agreement or otherwise provided for in an Order Form, each Order Form shall have a Subscription Period of one year commencing on its effective date. The Subscription Period will automatically renew for subsequent 12- month period(s) at the end of the Subscription Period in the Order Form, unless either Party sends the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Period.

10. Cancellation, Suspension, Termination.

10.1. Cancellation by Customer. Subject to fulfilment of Your payment obligations pursuant to Section 10,4, You may terminate all access to the Platform and any Supplemental Service at any time with 30 days’ prior written notice, however payment for the current Subscription Period (inclusive of any Supplemental Services) shall be non-refundable.

10.2. Suspension. In addition to LearnUpon’s rights under Section 8.5 (Overdue Fees), LearnUpon may immediately restrict or suspend (on a temporary or permanent basis) Your or any End User’s right to access or use any portion or all of the Platform and/or to delete one or more of Your End Users if We reasonably determine: Your or an End User’s use of the Platform or Supplemental Services (i) violates Section 3 (Use Restrictions), (ii) poses a security risk to the Platform, Supplemental Services or any third-party, (iii) violates applicable law or could subject LearnUpon, our affiliates, or any third party to liability, or (iv) could be fraudulent. LearnUpon will use commercially reasonable efforts under the circumstances to provide You with advance notice of any suspension under this Section 10.2 and, if practicable, an opportunity to cure any breach or violation prior to any such suspension.

10.3. Termination. A Party may terminate this Agreement or any Order Form (i) where permitted by another provision in this Agreement: (ii) for cause upon thirty (30) days written notice to the other Party of material breach if such breach remains uncured at the expiration of such period, if curable; (iii) if the other Party enters into bankruptcy proceedings (whether voluntarily or involuntarily) or receivership and such proceeding or receivership is not concluded or stayed within sixty (60) days, or if such Party makes a general assignment for the benefit of creditors.

10.4. Refund or Payment upon Termination. In no event shall any termination relieve Customer of the obligation to pay any Fees (including any Fees for Supplemental Services) payable to LearnUpon for the Subscription Period prior to the effective date of termination.

10.5. Termination of Supplemental Services. If a third-party provider of any Supplemental Services ceases to make the Supplemental Services available for interoperation with the Platform on reasonable terms, LearnUpon may cease providing such Supplemental Services and provide You with a pro rata refund for Fees payable solely with respect to such Supplemental Services for the then current Subscription Period.

10.6. Effect of Termination.

10.6.1. Upon the effective date of expiration or termination of this Agreement or any Order Form Subscription Period, You shall immediately cease any further use of the Platform and/or Supplemental Services. It is Your responsibility to retain the original source of all Content and to export Your End User training history prior to expiration or termination. LearnUpon reserves the right to delete all Content from the Platform thirty (30) days following the expiration or termination of this Agreement or any Order Form.

10.6.2. Termination or expiration of this Agreement does not affect or prejudice any rights, remedies, obligations or liabilities a Party accrued up to the date of termination or expiration or the continuation or commencement of any provision that expressly or by implication is intended to survive the termination or expiration of this Agreement.

11. Intellectual Property.

11.1. Platform and Supplemental Services Suggestions. Other than Your Content and Your trademarks, You acknowledge that the Platform,
the Supplemental Services and all Intellectual Property contained therein, is proprietary to LearnUpon and its licensors, and LearnUpon and its licensors retain exclusive ownership of the same throughout the world. Except for the limited express license granted to You under this Agreement, LearnUpon and its licensors retain all right, title or interest in and to the Platform and the Supplemental Services. LearnUpon shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Platform or other LearnUpon services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including its authorized End Users, relating to the operation of the Platform, the Supplemental Services or the provision of services, provided that the foregoing shall not apply to Customer Confidential Information.

11.2. Customer Content. You hereby grant LearnUpon and its third-party vendors the non exclusive worldwide, royalty-free right to use, reproduce, store, transmit, perform, adapt or display the Content solely to the extent required for LearnUpon’s provision of the Platform and Supplemental Services under this Agreement. Subject to the limited rights granted by You hereunder, neither LearnUpon nor its third-party vendors acquire any right, title or interest from You or Your licensors under this Agreement in or to the Content, including any Intellectual Property Rights therein.

12. Security and Data Protection.

12.1. Security. LearnUpon shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content in accordance with LearnUpon’s security measures as described in Annex 2 (Description of Security Measures) of the Data Processing Agreement at https://www.learnupon.com/customer-data processing-agreement/ and incorporated herein by reference. LearnUpon will not access or use Your Content except as necessary to maintain or provide the Platform, or as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, LearnUpon will give You notice of any legal requirement or order referred to in this Section 12 so that You may provide an objection to such disclosure.

12.2. Data Protection. If LearnUpon processes any personal data, each Party shall duly comply with its obligations under the Data Protection Legislation that arise in connection with this Agreement and shall adhere to the provisions set out in the Data Processing Agreement at https://www.learnupon.com/customer-data-processing-agreement/ and incorporated herein by reference.

13. Warranties.

13.1. Customer Warranties. Customer warrants that (i) Customer has validly entered into this Agreement and has the legal power to do so and (ii) that LearnUpon’s use of Content, including but not limited to Optional Third-Party Content in accordance with this Agreement will not infringe or violate the Intellectual Property Rights of any third party or any applicable law, and (ii) Customer’s entry into this Agreement and performance of its obligations hereunder will not violate or conflict with any other agreement or obligations to which Customer is bound.

13.2. Disclaimers. LearnUpon does not guarantee that use of the Platform (including Your Portal) or the Supplemental Services will be uninterrupted or error free at all times and in all circumstances, nor that such interruption or errors will be corrected. LearnUpon does not warrant that the services will meet Your requirements or that they will be suitable for any particular purpose. It is Your sole responsibility to determine that the Platform or the Supplemental Services meet the needs of Your business or otherwise and is suitable for the purpose for which it is used.

13.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEARNUPON MAKES NO WARRANTIES OF ANY KIND UNDER THIS AGREEMENT OR APPLICABLE SCHEDULE(S) OR EXHIBITS OR SUPPLEMENTAL TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SERVICES ARE PROVIDED “AS IS”. YOU ACKNOWLEDGE THAT YOU ARE DEALING WITH LEARNUPON AS A BUSINESS AND NOT AS A CONSUMER.

14. Liability

14.1. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LEARNUPON BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING ANY APPENDIX, ADDENDUM OR EXHIBIT OR SUPPLEMENTAL TERMS HERETO), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL, BUSINESS OR BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS OR WASTED MANAGEMENT TIME, WORK STOPPAGE, LOSS, DELETION OR CORRUPTION OF CONTENT OR DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.

14.2. Limitation of Liability. IN ANY CASE IN NO EVENT SHALL LEARNUPON’S AGGREGATE LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY, HYPERLINK, APPENDIX, ADDENDUM OR EXHIBIT OR SUPPLEMENTAL TERMS HERETO) EXCEED THE TOTAL SUBSCRIPTION PAYMENTS PAID OR PAYABLE TO LEARNUPON BY YOU IN THE PRECEDING TWELVE (12) MONTHS (THE “LIABILITY CAP”), NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION. LEARNUPON IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF
CONTENT OR MATERIALS ACCESSED THROUGH THE PORTAL AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

15. Indemnification.

15.1. Customer Indemnification. You shall defend LearnUpon against any claim, demand, suit, governmental action or proceeding (a “Claim”) made or brought against LearnUpon by a third party arising out of or in connection with (i) Your use or the use by Your End Users of the Platform or Supplemental Services In violation of this Agreement or any applicable law, (ii) any Content, including, but not limited to Third Party Content, posted, uploaded, distributed, transmitted or disseminated by You or Your End Users via the Platform or Supplemental Services, or (iii) a dispute between You and any End User, and shall indemnify LearnUpon for any damages, fines, attorney fees and costs incurred against LearnUpon as a result of, or for any amounts paid by LearnUpon under a court-approved settlement of such Claim.

15.2. LearnUpon Indemnification. LearnUpon shall defend You against any Claim made or brought against You by an unaffiliated third-party alleging that the Platform or Supplemental Services, or use of the Platform or Supplemental Services as permitted hereunder (but excluding any claims based on Content) infringes a copyright or misappropriates a trade secret (an “IP Claim”) and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of such IP Claim. If an IP Claim is made or appears likely to be made, LearnUpon, at its option, shall have the right, at its option, to (a) procure for You the right to continue to use the Platform or Supplemental Services, (b) modify or replace the Platform or Supplemental Services in a manner that substantially retains their functionality and quality so that they are no longer infringing, misappropriating or violating such right or (c) require You to terminate the use of the Platform or Supplemental Services and refund any fees prepaid by You for future use of the Platform or Supplemental Services, as applicable.

15.3. Exclusions. LearnUpon shall have no obligation under Section 15.2 or otherwise to the extent that an IP Claim or other Claim is based on or arises from (a) Your or Your End Users’ Content or any Customer materials, designs, or specifications; (b) a modification of the Platform or Supplemental Services not made or provided by LearnUpon, (c) Your or an End Users’ use of the Platform or Supplemental Services in a manner contrary to the instructions given to You by LearnUpon or in breach of this Agreement; or (d) Your or an End Users use of the Platform or Supplemental Services after notice of the alleged or actual infringement from LearnUpon or any appropriate authority.

15.4. Procedure. Each Party’s indemnification obligations in this Section 15 are subject to (a) prompt notification of any such Claim (provided that the indemnified Party’s failure to provide reasonable written notice shall only relieve the indemnifying Party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying Party’s ability to defend or settle such claim); (b) the transfer of sole control of the defense and any related settlement negotiations to the indemnifying Party (provided that the indemnifying Party may not settle any Claim unless the settlement unconditionally releases the indemnified Party of all liability); and (c) the indemnified Party’s reasonable cooperation in the defense of such claim.

15.5. Exclusive Remedy. This Section 15 states Your sole and exclusive rights and remedies, and LearnUpon’s entire obligation, responsibility, and liability, for infringement or claims alleging infringement.

16. Confidentiality.

16.1. Except as otherwise provided herein, each Party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing Party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. This provision does not apply to information which (a) is or becomes publicly known or is readily ascertainable through no act or omission of the receiving Party; (b) is lawfully in the possession of the receiving Party before the disclosure took place; (c) is lawfully disclosed to the receiving Party by a third-party without restriction on disclosure; (d) was communicated by disclosing Party to an unaffiliated third-party free of any obligation of confidence; and/or (e) is independently developed by the receiving Party without use of the confidential information of the disclosing Party. Further, either Party may disclose confidential information of the other Party as required by governmental or judicial order, provided such Party gives the other Party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, You shall treat the Platform and any Intellectual Property Rights therein as confidential information and shall not disclose, disseminate, or distribute such materials to any third-party without LearnUpon’s prior written permission. Each Party’s obligations under this Section 16 shall apply at all times during the term of this Agreement and shall survive termination of this Agreement.

17. Aggregated Anonymous Data.

17.1. The Platform, in the normal course of operations, provides LearnUpon with aggregated, statistical data (such as product or feature usage and functionality metrics), which is anonymized and aggregated with other such anonymized data so that it does not and cannot contain any information identifiable or attributable to You or any End User, either alone or in combination with other data (“Aggregated Anonymous Data”). To the extent that any Aggregated Anonymous Data is collected by LearnUpon, You agree that LearnUpon may use, store, analyze, and disclose such Aggregated Anonymous Data without Your prior written consent.

18. Export Compliance. Customer agrees to comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and Treasury Department’s Office of Foreign Assets Control regulations, and other anti-boycott and import regulations. Customer represents and warrants that it is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which LearnUpon is prohibited from doing business. Each Party is also responsible for complying with:

18.1. laws and regulations applicable to its business and Content; and

18.2. import, export and economic sanction laws and regulations, including the defense trade control regime of the United States of America and any applicable jurisdictions that prohibit or restrict the import, export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.

18.3. LearnUpon will not serve as Customer’s exporter or importer, except as required by data protection laws, for: i) any Content; or ii) use of any portion of the Platform from a country outside Customer’s business address.

19. Miscellaneous.

19.1. Publicity. You agree that LearnUpon may use Your business name and logo in accordance with any publicly available trademark usage guidelines on its marketing and promotional materials for the Platform, for as long as You use the Platform.

19.2. Force Majeure. Neither Party shall be deemed to be in default of this Agreement if it is prevented, hindered or delayed in performing its obligations under this Agreement by acts, events, omissions or accidents beyond its reasonable control including strikes, lock-outs or other industrial disputes (including with respect to its staff), failure of a utility service, Internet access or transport or electronic communications networks, act of God, war, riot, civil commotion, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, flood storm or default of suppliers or subcontractors.

19.3. Amendment and Waiver. The provisions in this Agreement may only be waived by a Party in writing by an express reference to this clause. No delay or neglect on a Party’s part in enforcing any provision of this Agreement is a waiver and does not in any way prejudice its right under this Agreement. A waiver by a Party of any breach of any provision of this Agreement does not constitute a general waiver of such provision.

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

19.5. Relationship of the Parties. This Agreement does not give rise to any partnership, joint venture, agency or employment relationship between You and LearnUpon.

19.6. Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a Party pursuant to the terms of this Agreement shall be: (y) if to You, to the email address provided, and (z) if to LearnUpon, to legal@learnupon.com or to any other email address notified to You by LearnUpon, with written copies of any legal notices sent to LearnUpon Limited, First Floor Ocean House, Arran Quay, Dublin 7, D07 DHT3, Ireland. Attention: General Counsel. Notice shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) as of the date received via email.

19.7. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). provided however, that either Party may assign this Agreement (and all applicable Order Forms related to Your use of the Services) upon written notice without the other Party's consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets, provided however, that should You assign this Agreement to any competitor of LearnUpon (whereby such determination is at the sole discretion of LearnUpon), then LearnUpon shall have the right to terminate this Agreement and Your use of the Services upon notice, in which case LearnUpon shall provide You with a pro-rata refund of any prepaid but unused Fees.

19.8. Survival. For avoidance of doubt, any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.

19.9. Severability. If any provisions of this Agreement are held to be unenforceable, illegal or void in whole or in part the remaining portions of this Agreement shall remain in full force and effect.

19.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of this Agreement shall expressly prevail, unless such exhibit, addendum or Order Form expressly references such conflict or inconsistency, in which case the exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

19.11. Governing Law. This Agreement will be governed by the laws of the State of New York, USA without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the Parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in New York, New York, USA, and the Parties hereby agree to submit to the jurisdiction and venue of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.