Last modified on June 13, 2018.

Emtrain® Privacy Policy

  1. Introduction

This Privacy Policy applies to your use of Emtrain’s services (the "Emtrain Services"). Emtrain values the privacy of users who visit and use the Emtrain Services (collectively or individually, "you" or "users") and wants you to be familiar with how we collect, use, and disclose personal information from and about you ("Personal Information").

You may share Personal Information when using the Emtrain Services. One example is when you provide information about yourself as part of the Emtrain account creation process. Another is when you take certain actions on the Emtrain site, such as when you search the site, visit web pages on the site, or submit questions through the site.

By agreeing to this Privacy Policy in your Emtrain account setup, or by using the Emtrain Services, you expressly consent to the information handling practices described in this Privacy Policy.

We understand that you care about your own personal privacy, and we take that seriously. This Privacy Statement describes Emtrain’s policies and practices regarding its collection and use of your personal data. We recognize that information privacy is an ongoing responsibility, and so we will from time to time update this Privacy Policy as we undertake new personal data practices or adopt new privacy policies.

  1. Personal Information We Collect

User-provided Information: You may provide a variety of information about yourself to us, such as your name, work email address, and the name of your employer when you register or otherwise use the features and functionality of the Emtrain Services. You must keep your password strictly confidential. You are responsible for all actions taken using your account information and password, and you agree to immediately notify Emtrain of any unauthorized use of which you become aware.

Workplace Conduct Questions. You may also submit questions through the Emtrain site about workplace conduct issues. One feature of the Emtrain Services is publishing those questions—after removing details that Emtrain believes are likely to identify the companies and individuals referenced in the questions—along with answers to the questions, to provide guidance to all users of the Emtrain Services.

Automatically Collected Information: The Emtrain website collects certain information automatically and stores it in log files. The information may include Internet Protocol address ("IP Address"), the region or general location where your computer or device is accessing the internet, device and browser types and identifiers, operating system a unique user ID, referring and exit page addresses, software and system type, and information about your usage of the Emtrain Services, including a history of the pages you view.

We use this information to help us design our site to better suit our users’ needs. We may also use your IP address to help diagnose problems with our server and to administer our website, analyze trends, track visitor movements, and gather broad demographic information that assists us in identifying visitor preferences. The Emtrain website also uses cookies and web beacons. It does not track users when they cross to third party websites, does not provide targeted advertising to them, and therefore does not respond to Do Not Track (DNT) signals.

Examples of how Emtrain uses automatically collected information include to: (a) remember your information so that you will not have to re-enter it during your visit or the next time you access the Emtrain Services; (b) provide customized content and information; (c) monitor the effectiveness of marketing campaigns; (d) monitor and store aggregate site usage metrics such as total number of visitors and pages accessed; and (e) track your entries, submissions, and status in any promotions or other activities.

Information from Other Sources: We will not obtain information about you from third parties, such as advertisers or social media networks.

  1. Cookies

Our web pages may use “cookies,” which are text files that a site or its service provider transfers to your computer’s hard drive through your Web browser that enable the site’s or service provider’s systems to recognize your browser and capture and remember certain information.

For instance, we use cookies to help us understand your preferences based on previous or current site activity, which enables us to provide you with improved services. We also use cookies to help us compile aggregate data about site traffic and site interaction so that we can offer better site experiences and tools in the future. For example, we may use Cookies to personalize your experience using the Emtrain Services.

Cookies alone do not tell us your e-mail address or other personally identifiable information unless you choose to provide this information to us by, for example, registering with Emtrain. However, once you choose to furnish Emtrain with personally identifiable information, that information may be linked to the data stored in the cookie. You can choose not to receive a cookie file by directing your Web browser to refuse Cookies or to prompt you before accepting a cookie.

  1. How We Use Personal Information

Emtrain uses Personal Information to operate, maintain, enhance, provide, create, and develop the features, functionality, and services (new or existing) found on the Emtrain Services; improve your experience with the Emtrain Services by delivering content that we hope you will find relevant and interesting; and understand the usage trends of our users.

Emtrain may also use Personal Information, and share such information with contracted third parties that perform functions on Emtrain’s behalf and under Emtrain’s instruction, to perform analytics and assist with customer support, account management, and our marketing efforts.

Emtrain will not disclose Personal Information to your employer, but we may inform the company you identify as your employer that one or more of its unidentified employees have indicated interest in topics addressed in the Emtrain Services as part of our marketing efforts.

We use your company email address to communicate with you, including to notify you of major Emtrain Services updates, for customer service purposes, or to contact you regarding any content that you have posted to or downloaded from the Emtrain Services.

  1. Choice

You may decline to share certain information with Emtrain, in which case Emtrain may not be able to provide to you some of the features and functionality found on the Emtrain Services. If you have created a Emtrain Services account, then you can update your profile information and preferences or disable your account by logging in and going to the “Settings” page. If you close your account, Emtrain may retain other information about you for the activities described in this Privacy Policy, or as permitted or required by applicable law.

To protect your privacy and security, we may take steps to verify your identity before granting you access or making corrections to your information. You are responsible for maintaining the secrecy of your password and account information.

  1. Data Protection and Security

Emtrain uses a variety of managerial, technical, and physical measures to protect the integrity and security of your information. These measures may vary based on the sensitivity of your information. However, no security precautions or systems can be completely secure. We cannot ensure or warrant the security of any information you transmit to Emtrain, and you do so at your own risk. We cannot guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.

  1. Non-Personal / Aggregated Data

In addition to any Personal Information you may voluntarily provide to us, the Emtrain Services also collect general information regarding visitors and users as it relates to their use of the Emtrain Services ("Aggregated Data"). This information is collected automatically each time a user navigates the Emtrain website. The term Aggregated Data includes such information as traffic patterns, number, frequency and duration of visits to certain pages, visits from other web sites or to third-party web sites linked to the Emtrain website, use of particular services and interest in services, information or features of the Emtrain Services made available through or found through the Emtrain Services. This information is anonymous and is useful for improving the content and navigational tools of our web site. Aggregated Data may also include information or data obtained from you or other sources which has been combined with or compiled from other information or data in such a manner to no longer be personally identifiable or linked to an individual. Aggregated Data is not considered Personal Information for the purposes of this Privacy Policy.

  1. When We Disclose and Share Information

Emtrain does not share information that can identify you personally with third parties for their marketing or promotional uses without your consent. We may share such information for the following purposes:

We may disclose such information to service providers working on our behalf, such as, to: provide website hosting, maintenance, and security services; conduct data analysis and create reports; offer certain functionality; or assist Emtrain in improving the Emtrain Services and creating new services and features. We require that these parties process such information in compliance with this Privacy Policy, we authorize them to use the information only for the purposes for which it is provided to them, and we require them to use reasonable confidentiality measures.

Emtrain may disclose your Personal Information if we believe in good faith that such disclosure is necessary to comply with U.S. state and federal laws or other applicable laws around the world (for example, in the country of your residence), or respond to a court order, judicial or other government request, subpoena, or warrant in the manner legally required.

Emtrain also reserves the right to disclose Personal Information that we believe, in good faith, is appropriate or necessary to protect Emtrain from potential liability or from fraudulent, abusive, or unlawful uses; investigate and defend ourselves against third-party claims, or allegations; protect the security or integrity of the Emtrain Services; or protect the rights, property, or safety of Emtrain, our users, or others.

We do not sell, trade, or otherwise transfer to outside parties your Personal Information.

  1. Third Party Services and Websites

The Emtrain Services may link to third-party websites or services. The privacy practices of those third parties are not governed by this Privacy Policy. We encourage you to review the privacy policies of these third-party websites and services to understand their practices.

  1. California Privacy Rights

California law permits users who are California residents to request and obtain from us once a year, free of charge, a list of the third parties to whom we have disclosed their personal information (if any) for their direct marketing purposes in the prior calendar year, as well as the type of personal information disclosed to those parties. Emtrain does not currently disclose personal information to third parties for their direct marketing purposes.

  1. Your Rights

You have the right to request an electronic copy of your information, to request the deletion or restriction of your information, or to request your information in a structured and electronic format. You can make these requests by contacting us using the information provided in the Contact Information section below.

  1. Do Not Track

Do Not Track ("DNT") is a privacy preference that users can set in certain web browsers. DNT is a way for users to inform websites and services that they do not want certain information about their webpage visits collected over time and across websites or online services. We are committed to providing you with meaningful choices about the information collected on our website for third-party purposes, but we do not recognize or respond to browser-initiated DNT signals, as the Internet industry is currently still working toward defining exactly what DNT means, what it means to comply with DNT, and a common approach to responding to DNT. It’s also important to note that we do not allow third party behavioral tracking.

  1. Other People’s Personal Information

You should obtain the consent of any third party prior to your providing any personal information of that third party through the Emtrain Services, as any access to view or change his/her information may be available only through your account.

  1. Children’s Privacy

IF YOU ARE UNDER 13 YEARS OF AGE, THEN PLEASE DO NOT USE OR ACCESS THE EMTRAIN SERVICES AT ANY TIME OR IN ANY MANNER.

Protecting the privacy of young children is especially important. For that reason, Emtrain does not knowingly collect or maintain personal information from persons under 13 years of age. If Emtrain learns that personal information of persons under 13 years of age has been collected on or through the Emtrain Services, Emtrain will take appropriate steps to delete this information.

If you are the parent or legal guardian of a child under 13 who has become a Emtrain Services member, then please contact Emtrain at support@emtrain.com to have that child’s account terminated and personal information deleted.

  1. Transfers of Personal Data

The Emtrain Services are hosted and operated in the United States (“U.S.”) through Emtrain and its service providers, and if you do not reside in the U.S., laws in the U.S. may differ from the laws where you reside. By using the Emtrain Services, you acknowledge that any personal data about you, regardless of whether provided by you or obtained from a third party, is being provided to Emtrain in the U.S. and will be hosted on U.S. servers, and you authorize Emtrain to transfer, store and process your information to and in the U.S., and possibly other countries. You hereby consent to the transfer of your data to the U.S. as set forth herein.

Emtrain is committed to the Principles of the EU-U.S. Privacy Shield Framework set forth by the U.S. Department of Commerce regarding the collection and use of personal data transferred from the European Union (“EU”). These Principles are (1) notice, (2) consent, (3) accountability for onward transfer, (4) security, (5) data integrity and purpose limitation, (6) access and (7) recourse, enforcement and liability with respect to all personal data received from within the EU in reliance on the Privacy Shield. The Privacy Shield Principles require that we remain potentially liable if any third party processing personal data on our behalf fails to comply with these Privacy Shield Principles (except to the extent we are not responsible for the event giving rise to any alleged damage). Emtrain’s compliance with the Privacy Shield is subject to the investigatory and enforcement powers of the U.S. Federal Trade Commission. For more information about the Privacy Shield Program, please visit https://www.privacyshield.gov/ .

  1. Changes and Updates to this Privacy Policy

Emtrain reserves the right to change, modify, add, or remove portions of this Privacy Policy at any time (for example to reflect updates to the Emtrain Services or to reflect changes in the law). If Emtrain changes this Privacy Policy, we will provide you notice of these changes, such as by sending an email, posting a notice on the Emtrain Services, or updating the “Last Updated” date above. Please check this Privacy Policy periodically for those changes. Your continued use of the Emtrain Services after the posting of changes constitutes your binding acceptance of such changes.

  1. Merger or Sale

If Emtrain, or some or all assets related to the Emtrain Services are acquired by or merged with a third-party entity or because of a contemplated change of ownership transaction, we reserve the right, in any of these circumstances, to transfer or assign the information that we have collected from users as part of that merger, acquisition, sale, or other change of control event.

  1. Contact Information

Please direct any questions or comments about this Privacy Policy to Emtrain’s Data Privacy Officer, Heather Jerrehian, at 2018 19th St, Sacramento, CA 95818, or by email to hjerrehian@emtrain.com. We will respond to your inquiry within 30 days of its receipt. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.



Emtrain® License Agreement

This license agreement (the “Agreement”) between Licensee and Emtrain (the “Parties”) is dated on the date Licensee completes an order through the Emtrain website (the “Effective Date”). The Parties agree as follows:

  1. DEFINITIONS

a. The “Emtrain System” means the library subscription, Courses and/or products listed on the shopping cart confirmation receipt generated when Licensee places its order through the Emtrain website, including the software hosting platform, web-based applications, electronic files and/or other training material, documentation or packaging provided by Emtrain.

b. “Course” means computer based or web-based training material developed and owned by Emtrain and/or its licensors, including all hard copy, machine-readable materials that comprise the course, all related images, sound recordings, text, software, electronic files, data, CD-ROM, DVDs, documentation or packaging provided by Emtrain, whether hosted by Emtrain or provided in Sharable Content Object Reference Model (“SCORM”) or similar format.

c. “Course Seat” means a license under this Agreement to allow one Learner to use one Course on one LMS.

d. “Learner” means any individual who Licensee authorizes to use a Course, including but not limited to Licensee’s employees, consultants, independent contractors, and non-employees.

e. “LMS” (learning management system) means a software application for the administration, documentation, tracking, reporting and delivery of educational courses or training programs, such as Emtrain’s Emtrain LMS system.

f. “Order” means the document that incorporates by reference the terms and conditions of this Agreement, describes Licensee’s order-specific information, such as the identity of Courses ordered, the number of Seats, and fees.

g. “Add-on” means an additional Course Seat purchased after this Agreement becomes effective.

  1. GRANT OF LICENSE

Subject to the terms of this Agreement and payment of fees, Emtrain grants to Licensee, for the term of this Agreement, a non-exclusive, non-transferrable right to use the quantity of Course Seats purchased. Licensee must identify to Emtrain the LMS on which it will deploy the Courses and shall only deploy the Courses on that LMS. Licensee shall only utilize the Courses on Emtrain’s Emtrain LMS.

Licensee may assign Course Seats to Learners and Licensee shall be responsible for those Learners’ compliance with the Use Restrictions in Section 7.

After a Course Seat has been assigned to a Learner and/or the Learner has started a Course, Licensee shall not reassign that Course Seat to a different Learner until the next one-year term under this Agreement. For a Course Seat already assigned to one Learner, Licensee may assign that Course Seat to a different Learner if either (1) a new one-year term has commenced under this Agreement, or (2) the assigned Learner has not started the Course.

The terms of this Agreement shall govern Add-ons purchased Licensee during the term of this Agreement.

The license provided by this Agreement for an Add-ons expires at the end of the then-current term of this Agreement unless Licensee purchased the Add-on within 30 days of the next renewal date, in which case the license for the Add-on extends for an additional twelve (12) months following the end of the then-current term of this Agreement.

  1. TERM

Unless otherwise extended or terminated in accordance with its terms, this Agreement shall remain in full force and effect for one (1) year from the Effective Date.

This Agreement shall automatically renew annually for a new one-year term unless either party notifies the other of cancellation in writing at least 30 days before the end of the then-current term.

  1. FEES AND PAYMENT

a. Order Placement. Licensee may place an Order electronically or in writing, and an Order may be confirmed by a purchase order, invoice, license key, or other similar materials that incorporate by reference the terms and conditions of this Agreement. An Order may contain usage, business, legal and other terms and conditions agreed to by the Parties.

b. Fees, Price Increases, and Invoices. Fees are set forth in the applicable Order. All fees are in United States Dollars and are non-refundable and non-cancellable. Emtrain may increase prices for Course Seats by a maximum of five percent (5%) each renewal period. Emtrain shall send Licensee all invoices via email to the email address indicated in the applicable Order.

c. Payment. All payment obligations that are not paid upon execution of the Order are due upon receipt of invoice. Payments shall be made in United States Dollars and are non-refundable and non-cancellable.

d. Automated Clearing House Payments. If Licensee so elects, payments shall be paid to Emtrain by Automated Clearing House (“ACH”) debit of immediately available funds from the financial institution account designated by Licensee in an Automated Clearing House debit authorization executed by Licensee, and shall be effective upon receipt. Licensee shall execute any and all forms and documentation necessary from time to time to effectuate such automatic debiting. In no event shall any such payments be refunded to Licensee.

e. Automatic Credit Card Payments. If Licensor provides Emtrain with credit card information for Payments, it authorizes Emtrain to initiate recurring charges from the specified credit card. The amount charged to the credit card will be the then current balance on the account.

f. Suspension for Non-Payment. If Licensor does not timely pay any amount due to Emtrain, Emtrain may, in its sole discretion, render the Courses inoperable or otherwise deactivate Licensor’s access to the Emtrain System.

g. Past Due Payments. Licensee shall reimburse Emtrain for reasonable collection fees and costs (including reasonable attorneys’ fees) incurred in collection amounts past due under this Agreement that are not under good faith dispute by Licensee, provided that Emtrain (i) provides reasonable prior written notice to Licensee of such failure to pay and (ii) fourteen (14) calendar days have passed after that notice during which Licensee has not cured its failure to pay. Emtrain may require Licensee to pay all outstanding fees in full before Emtrain renders any additional performance and before Emtrain allows Licensee to purchase any additional Course Seats.

h. Taxes. Licensee shall be responsible for all sales taxes, use taxes, value added taxes and any other taxes and charges of any kind imposed by any federal, state, or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Emtrain’s income. Any payment not received within 30 days of due date will trigger late charges for the Licensee at the rate of two percent (2%) per month or the maximum amount allowed by law (whichever is less) on all money past due.

  1. OWNERSHIP OF EMTRAIN COURSES

The Courses are protected under U.S. copyright law and other intellectual property rights. Emtrain retains title, ownership, and copyrights of the Courses, including documentation and other content provided to Licensee by Emtrain. Emtrain reserves all rights in the Courses not expressly granted to Licensee. This Agreement is not a sale of the Course, and Licensee may not sell, rent, lease, lend, sublicense, publish or otherwise distribute copies of any Course or included documentation to others. Licensee shall not use the Course for the benefit of a third party, such as by providing a rental or sharing arrangement, or by making a Course available on a “service bureau” basis.

  1. COURSE MODIFICATION

Emtrain reserves the right to modify, restrict, or update any content contained in a Course throughout the Term of this Agreement.

  1. USE RESTRICTIONS

a. Licensee shall not decompile, reverse engineer, or disassemble a Course or any components thereof, nor may Licensee use Course files to create a similar e-learning product for either internal or external use.

b. If Licensee uses a third-party LMS, Licensee shall prohibit the LMS vendor from decompiling, reverse engineering, or disassembling the Course files.

c. Licensee shall ensure the confidentiality of Course files whether they reside on Emtrain’s LMS, a third-party LMS, on Licensee’s own LMS, or otherwise. Licensee shall not place or store any Course or any of components of a Course on a server or other location that is accessible to the public.

d. If Emtrain has reason to believe Licensee’s third-party LMS vendor has infringed Emtrain’s copyrighted material, Licensee agrees to assist Emtrain’s enforcement of its intellectual property rights.

  1. TERMINATION

a. Emtrain may terminate this Agreement if Licensee fails to make any payment due hereunder.

b. Either party may terminate this Agreement if (i) the other party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, or (ii) if the other party terminates its business activities, becomes insolvent, files a voluntary bankruptcy petition, or makes an assignment for the benefit of creditors.

c. Upon termination of this Agreement for any reason, Licensee shall (i) return all Courses and all of their components to Emtrain, or (ii) destroy all copies of the Courses in Licensee’s possession and provide written assurances to Emtrain, signed by an officer of Licensee, that it has done so.

d. Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available.

e. Sections 4, 5, 7, 9, 11, 13, 14, 15, 17, 18, 19, 20, 21, and 22 shall survive any expiration or termination of this Agreement.

  1. COURSE ACCESS

a. Emtrain shall provide Licensee with access to the Courses upon receipt of payment per the terms of the Order. 

b. Emtrain may, in its sole discretion, render the Courses inoperable or otherwise deactivate Licensor’s access to the Emtrain System in the event of a material breach by Licensee of any obligations contained herein.

  1. SYSTEM REQUIREMENTS

a. In order to use the Courses and/or Emtrain’s LMS, Learners must have hardware and software that meet the minimum system requirements (as modified from time to time) specified at this web page: https://emtrain.com/system-requirements

  1. MUTUAL CONFIDENTIALITY

a. During the term of this Agreement each party (a “Receiving Party”) may receive Confidential Information of the other party (a “Disclosing Party”). “Confidential Information” means any trade secrets and other proprietary information of either party, whether in tangible or intangible form, that relate to such party’s research, business operations, customers, employees, products, pricing, financial information, computer programs, designs, models, or operating procedures, other than information that (i) is or becomes public other than by breach of this Agreement, (ii) was in the Receiving Party’s possession prior to the time it was received by such party under this Agreement, or (iii) was rightfully received from a third party on a non-confidential basis.

b. During the term of this Agreement and thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in strictest confidence, and shall not disclose it to any person, firm, corporation, or other entity without written authorization of the Disclosing Party.

c. Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information to its employees and contractors to the extent reasonably necessary to allow the Receiving Party to perform its obligations under this Agreement and to obtain the benefits of this Agreement, provided that each such employee or contractor is under an obligation of nondisclosure, which protects the Confidential Information under terms substantially similar to the terms herein. 

d. Notwithstanding this Section, (a) either party may disclose Confidential Information pursuant to a subpoena or other government demand, provided that it gives the Disclosing Party prompt notice of such demand, and (b) Emtrain may collect, use, and/or publish aggregated data collected from Licensee’s Learners for the purpose of improving Emtrain’s services and products, provided that this data does not identify any individual Learner or Licensee.

  1. WARRANTY

Emtrain warrants that Course content complies with state and federal legal requirements for employer Code of Conduct and HR compliance training, including state-mandated harassment training such as California’s AB 1825 and/or Connecticut’s 46A, as of the date the Course is provided to Licensee. Emtrain warrants to Licensee that the digital files on which the Course is recorded or captured are free from defects in materials and workmanship under normal use and service. Emtrain warrants that its Course files are free from (i) any intentionally injurious instructions or viruses that are designed to modify, damage, delete or disable software or data, or (ii) computer code that permits unauthorized access to the Course by Emtrain or any third party. Emtrain’s entire liability and Licensee’s exclusive remedy for breach of warranty shall be, at Emtrain’s option, either a refund of the fees paid for a particular Course or replacement of the Course.

  1. DISCLAIMER OF WARRANTIES

EMTRAIN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY COURSE, INCLUDING ITS QUALITY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. A COURSE IS LICENSED AND DELIVERED “AS IS.” 

LICENSEE SHALL NOT RELY UPON A COURSE TO ASSESS AND/OR ANALYZE ANY SPECIFIC WORKPLACE EMPLOYMENT SITUATION. LICENSEE IS ADVISED TO SEEK LEGAL COUNSEL FOR SPECIFIC WORKPLACE EMPLOYMENT SITUATIONS. EMTRAIN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM LICENSEE’S RELIANCE ON TRAINING TO ASSESS OR INTERPRET A SPECIFIC WORKPLACE EMPLOYMENT SITUATION.

  1. 14. LIMITATION OF LIABILITY

NEITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, THE COST OF SUBSTITUTE SERVICES OR OTHER PECUNIARY LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EACH PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL MONIES PAID BY LICENSEE TO EMTRAIN IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE INITIAL NOTICE OF ANY CLAIM HEREUNDER.

THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO INDEMNIFICATION OBLIGATIONS, ANY DAMAGES DUE TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR ANY BREACH OF THE CONFIDENTIALITY, OWNERSHIP, OR USE RESTRICTIONS CONTAINED HEREIN.

  1. INDEMNIFICATION

Emtrain shall indemnify, hold harmless and defend Licensee against and from any third-party claims asserted against a Licensee arising out of any claim that a Course and/or any related documentation infringes any third party intellectual property right. If a Course and/or any associated documentation becomes or is likely to become the subject of any such claim or action, Emtrain shall, at Emtrain’s selection: (i) replace the Course and/or any associated documentation with an equally suitable Course free of infringement; (ii) modify the Course and/or any associated documentation so that it will be free from infringement, provided such modification does not adversely affect the functionality or Licensee’s use of the Course and/or any associated documentation; (iii) procure for Licensee's benefit the right to use the Course and/or any associated documentation as contemplated hereunder; or (iv) accept the return or certify the destruction of the Course and/or any associated documentation from Licensee and refund to Licensee pro rata fees for the remainder of the term.

  1. OTHER BUSINESS FORMS

The terms, provisions or conditions of any invoice, purchase order or other business form or written authorization used by Licensee will have no effect on the rights, duties or obligations of the Parties under this Agreement, regardless of the failure of Emtrain to object to those terms, provisions or conditions. Notwithstanding the foregoing, the Parties may subsequently add Course Seats, Courses, or additional Learners to this Agreement if: (a) Licensee issues an Order and/or a usage report to Emtrain for any such additional Course Seats, Courses, or Learners; (b) any such Order and/or usage report specifically references this Agreement and identifies the additional Course Seats, Courses, or Learners to be licensed under this Agreement; (c) Emtrain accepts such Order and/or usage report by providing such additional Course Seats, Courses, or Learners to Licensee; and (d) Licensee pays Emtrain the applicable corresponding fees for such additional Course Seats, Courses, or Learners.

  1. NO ASSIGNMENT

Neither Party may assign this Agreement to any third party, except to its parent company or any majority-owned subsidiaries, without the prior written consent of the other.

  1. SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from this Agreement.

  1. AMENDMENT, MODIFICATION, AND WAIVER

No waiver or modification of any provision of this Agreement shall be valid unless in writing and signed by both parties. No waiver of any breach shall be deemed a waiver of any subsequent breach.

  1. JURISDICTION AND DISPUTES

This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of law principles that require the application of laws of a different state. All disputes hereunder shall be resolved in the applicable state or federal courts in Sacramento or San Francisco, California. The Parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.

  1. CAPACITY AND AUTHORITY

Each Party states that it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and that this Agreement is executed by its duly authorized representative and Licensee states that its duly authorized representative has completed the order from Emtrain through the Emtrain website.

  1. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between Emtrain and Licensee with respect to the subject matter hereof, and supersedes any and all prior agreements and understandings, whether written or oral. This Agreement shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict with it.