Effective Date: April 14, 2022
Emtrain’s Software as a Service (SaaS) Agreement
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Emtrain will provide Client with access to the Services through the internet. The Services are subject to modification from time to time as deemed appropriate by Emtrain to provide value to Client and to reflect best practices in learning content. Emtrain shall provide reasonable notice to Client in the event that any such modifications, restrictions, or updates will have a material impact on the Services.
1.2 Emtrain reserves the right to suspend Client’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Client is in breach of this Agreement, including failure to pay any amounts due to Emtrain.
1.3 Subject to the terms hereof, Emtrain will provide reasonable support to Client for the Services from Monday through Friday during Emtrain’s normal business hours, which are 8 am to 5 pm PST. In the event of a need for scheduled maintenance, Emtrain will provide Client with 5 business days advance notice that services will be interrupted.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 For each year of the Service Term commencing on the Service Start Date, the End User (Client’s designated learner) is considered assigned to a License for such year if such End User has accessed the Services. If Client wishes to re-assign one of its permitted Licenses to a different End User, Client may only do so on each anniversary of the Service Start Date.
2.2 Client will not, and will not permit any End User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit and for the benefit of End Users; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; (v) remove, alter or obscure any copyright, trademark or other Emtrain designations from any of the Emtrain materials, or (vi) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy (including, without limitation, in Europe), intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation). Specifically, but without limitation, Client will not use the Services for any marketing purpose, including without limitation, to send marketing text messages, and will comply with the notice, “opt out” and other provisions of the following California laws: California Business and Professions Code Sections 17538.4 and 17538.45.
2.3 Client will cooperate with Emtrain in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Emtrain may reasonably request. Client will also cooperate with Emtrain in establishing a password or other procedures for verifying that only designated employees of Client have access to any administrative functions of the Services.
2.4 Client will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Client may change the individual designated as Primary Contact at any time by providing written notice to Emtrain.
2.5 Client will be responsible for maintaining the security of Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account with or without Client’s knowledge or consent.
2.6 Client acknowledges and agrees that Client’s access to the Services may require use of third party application programming interfaces (APIs) and/or other third party services, none of which are provided as part of the Services by Emtrain (“Third Party Services”). Emtrain is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Client is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Emtrain does not make any representations or warranties with respect to any Third Party Services or any other third party providers. Any exchange of data or other interaction between Client and a third party provider is solely between Client and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
3.3 Client acknowledges that Emtrain does not wish to receive any Proprietary Information from Client that is not necessary for Emtrain to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Emtrain may reasonably presume that any unrelated information received from Client is not confidential or Proprietary Information.
3.4 Notwithstanding anything else, Emtrain may use the contact information of Client’s personnel (including but not limited to those who are End Users) to contact such personnel regarding the availability of Emtrain’s products and services or to gather feedback to improve Emtrain’s products and services.
3.5 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors and/or acquirers of either Party.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, including Client custom content projects as designated in writing, Emtrain alone (and its licensors, where applicable) will retain all intellectual property rights in and relating to the Service or the Software, as well as any content suggestions, enhancement requests, feedback, recommendations or other information provided by Client or any third party relating to the Service and/or the Software, all of which are hereby assigned to Emtrain. Client will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Client is hereby granted a non-exclusive, nontransferable, revocable right to use the Services during the Term for its internal use purposes only. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service or Software, or any intellectual property rights. Without limiting any of the foregoing or any restriction in the TOS, where approved by Emtrain in writing, Client will ensure that its use of any Emtrain materials includes a clear reference to Emtrain as the source and owner of such materials, and specifically include Emtrain’s name and logo in the form and format as specifically provided by Emtrain, or as otherwise agreed by the parties in writing.
4.2 Emtrain may use any employee sentiment data derived from Client’s use of the Services, provided that such data is aggregated and anonymized so that it does not identify Client or any End User (the “Aggregate Data”). Aggregate Data may be used and disclosed freely by Emtrain, including without limitation, to improve its products and services. For clarification, the aggregated employee sentiment data is mapped to Emtrain’s proprietary framework of Workplace Social Indicators™ and benchmarked against Emtrain’s entire employee sentiment database to calculate a “culture score” on a particular workforce skill.
4.3 If the Services are found to be an infringement of any United States patent or any copyright or misappropriation of any trade secret, Emtrain shall, at Emtrain’s election: (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 Client’s use of the Course and/or any associated documentation; (iii) procure for Client’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 Client and refund to Client pre-paid pro rata Recurring Fees for the remainder of the Service Term.
5. PAYMENT OF FEES; AUDIT
5.1 Client will pay Emtrain the applicable fees as set forth on the Order Form (the “Fees”). If Client use of the Services exceeds the number of licensed Licenses indicated on the Order Form, Client will be invoiced as provided in the Order Form for the excess usage over the licensed number of Licenses, at the rate set forth on the Order Form, and Client agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Client will also pay Emtrain for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Charge Schedule and the Method of Payment. If not otherwise specified, payments will be due upon receipt and are nonrefundable.
5.2 Unpaid Fees are subject to a finance charge of two percent (2%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Client agrees to pay such taxes (excluding US taxes based on Emtrain’s net income) unless Client has provided Emtrain with a valid exemption certificate. In the case of any withholding requirements, Client will pay any required withholding itself and will not reduce the amount paid to Emtrain on account thereof.
5.3 Emtrain shall be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing. In the event an audit shows a difference in the amount payable to Emtrain under this Agreement than the amount actually paid, Client shall pay such difference within ten (10) days upon written demand by Emtrain.
6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form. Because of the nature of its services (e.g., annual compliance needs and/or developing skills over a period of time), Emtrain does not allow a termination “for convenience.” In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.2 Upon termination of this Agreement for any reason, Client shall destroy any and all copies of the documentation of the Services in Client’s possession and provide a certificate of an officer of Client to such effect.
6.3 All sections of this Agreement which by their nature should survive termination or expiration will survive termination or expiration, including, without limitation, use restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnity obligations and limitations of liability.
7. CLIENT SOFTWARE SECURITY
7.1. Emtrain represents and warrants that it will not knowingly include, in any Emtrain software released to the public and provided to Client hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Emtrain fails to comply with the warranty in this Section, Client may promptly notify Emtrain in writing of any such noncompliance. Emtrain will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Client with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Client may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8.1 Emtrain warrants that the content of the Courses (as defined below) complies with all local, state and federal legal requirements for employers conducting Code of Conduct, Global Anti-bribery, Global Data Privacy, and HR compliance training, including state-mandated harassment prevention training such as California’s AB 1825 and/or Connecticut’s 46A, New York State, New York City’s harassment training regulation, Illinois’ harassment training mandate and any other state harassment training mandate in effect as of the date the Services are provided to Client. “Course” means the proprietary web-based training material developed and owned by Emtrain, including, but not limited to, all hard copy, machine-readable materials that comprise the course, all related images, video and audio recordings, text, software, electronic files, data, documentation or packaging provided by Emtrain, whether hosted by Emtrain or provided in Sharable Content Object Reference Model (“SCORM”) or similar standardized format.
8.2 EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND ALL EMTRAIN PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. EMTRAIN (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CLIENT SHALL NOT RELY UPON A COURSE TO ASSESS AND/OR ANALYZE ANY SPECIFIC WORKPLACE EMPLOYMENT SITUATION. CLIENT IS ADVISED TO SEEK LEGAL COUNSEL FOR SPECIFIC WORKPLACE EMPLOYMENT SITUATIONS. EMTRAIN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM CLIENT’S RELIANCE ON TRAINING TO ASSESS OR INTERPRET A SPECIFIC WORKPLACE EMPLOYMENT SITUATION.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EMTRAIN (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF EMTRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EMTRAIN, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) ONE HUNDRED THOUSAND DOLLARS, OR (ii) THE FEES PAID TO EMTRAIN HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything provided in this Agreement, Client may not provide to any person or export or re-export or allow the export or re export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Client acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is a representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Emtrain are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11. PUBLICITY IF/WHEN CLIENT IS PLEASED
Client acknowledges that, if it is pleased with Emtrain’s solution and services, Client may be asked to participate in press announcements, case studies, trade shows, or other similar promotional or instructional activities reasonably requested by Emtrain. Emtrain is permitted to use Client’s names, marks and logos for the purposes of disclosing that Client is one of its customers to any third-party, or on the Emtrain website, after Client has indicated it is satisfied and pleased at Emtrain’s solution and services.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Emtrain’s prior written consent. Emtrain may transfer and assign any of its rights and obligations under this Agreement with written notice to Client. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Emtrain in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Emtrain will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Sacramento, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.