Terms & Conditions USA

1. Parties‍

1.1 etrainu and Customer as per Agreement Details.

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2. Definitions and interpretation

2.1 Capitalized terms or expressions used in this agreement have the meanings set out in this clause.

Applicable Laws: all applicable laws, statutes, rules, regulations and codes from time to time in force.

Business Day: a day other than a Saturday, Sunday or other day on which commercial banks are authorized or required to close in Wilmington, Delaware.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Commencement Date: is the date noted in Agreement Details.

Customer Pre-existing IP Rights: Intellectual Property Rights in all material that is made available by Customer to etrainu in connection with this agreement that either:

• existed prior to the Commencement Date; or
• was developed independently of this agreement. 

Control: the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise.

Customer's Representative: has the meaning given in Section 7.2(a).

etrainu Pre-existing IP Rights: Intellectual Property Rights in all material owned by etrainu that is made available to the Customer in connection with this agreement and that either:

• existed prior to the Commencement Date; or
• was developed independently of this agreement. 

etrainu's Representative: has the meaning given in Section 6.3.

Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

Interest Rate: the most recent prime rate announced and published by the Wall Street Journal.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, logos, business names and domain names, rights in trade dress, goodwill and the right to sue for infringement, rights in designs and unregistered designs, circuit layout designs, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and technical data), technology and all other rights in intellectual property, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future anywhere in the world.

Personal Information: means information that identifies, relates to, describes, is reasonably capable of being associated with, could reasonably be used to infer information about, or could reasonably be linked, directly or indirectly, with an individual person or household.

Services: the services described in one or more Schedules to this agreement.

SOW Charges: the sums payable for the Services as set out in a Statement of Work.

Statement of Work: a detailed plan, agreed in accordance with Section 5, describing the Services to be provided by etrainu, the relevant Schedule, the timetable for their performance and related matters.

Term: the period from the Commencement Date until termination of this agreement in accordance with its terms.

2.2 In this agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

(a) headings and subheadings are for convenience only and do not affect the interpretation of this agreement;

(b) references to clauses, Schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the Schedules, annexures, appendices, attachments and exhibits to, this agreement;

(c) references to parties are references to the parties to this agreement;

(d) references to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives;

(e) words denoting the singular include the plural and words denoting the plural include the singular;

(f) words denoting any gender include all genders;

(g) the word "person" includes any individual, corporation or other body corporate, limited liability company, partnership, joint venture, trust, association or other entity, and any Government Agency;

(h) a reference to a person (other than a party to this agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another person is a reference to the person that replaces it or that substantially succeeds to its powers or functions;

(i) a reference to any agreement or document (including this agreement) includes any amendments to or replacements of that document;

(j) a reference to a law includes legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them, any constitutional provision, treaty or decree, any judgment, any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts;

(k) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this agreement;

(l) if a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day;

(m) a reference to time is a reference to Eastern Standard Time (EST) or Eastern Daylight Time (EDT), as applicable, unless otherwise specified;

(n) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

(o) if any act is required to be performed under this agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day;

(p) if any act is required to be performed under this agreement on or by a specified day and that day is not a Business Day, the act must be performed on or by the next Business Day;

(q) a reference to an amount of dollars, U.S. dollars, $ or US$ is a reference to the lawful currency of the United States of America, unless the amount is specifically denominated in another currency;

(r) specifying anything in this agreement after the terms "include", "including", "includes", "for example"', "such as" or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary;

(s) this agreement includes all Schedules, annexures, appendices, attachments and exhibits to it as if fully set forth herein;

(t) a reference to writing or written includes email but not fax;

(u) references to a document in agreed form are to that document in the form agreed by the parties;

(v) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and

(w) an agreement other than this agreement includes a deed, undertaking or legally enforceable agreement or understanding whether in writing or not.

(x) in the event of any conflict or inconsistency among the following documents, the order of precedence will be:  (1) the applicable Statement of Work, (2) Terms and Conditions contained within this Master Services Agreement, (3) any schedules to the Masters Services Agreement, and (4) any embedded documents linked within any of the above documents.

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3. Commencement and Term
   

3.1 The term of this agreement starts on the Commencement Date and, unless terminated earlier in accordance with Section 14, ends when either party gives to the other party not less than 60 days' prior written notice of termination, such notice of termination only:

3.2 to be given no earlier than 60 days prior to the first anniversary of the Commencement Date; and

3.3 to take effect on the later of (a) expiration of the 60-day period specified in the notice of termination or (b) completion of all Statements of Work entered into before the date on which the notice of termination was given.

3.4 If there are no incomplete Statements of Work as at the date the notice of termination is given under Section 3.1, such notice will terminate this agreement effective upon expiration of the 60-day period specified in the notice of termination.

3.5 The parties will not enter into any further Statements of Work after the date on which notice of termination is given under Section 3.1.

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4. Schedules
   

4.1 Further terms applicable to specific Services are set out in the Schedules to this agreement. 

4.2 The terms of a Schedule only apply to the corresponding Service. 

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5. Statements of Work
   

5.1 During the Term, the Customer may procure any of the Services by agreeing a Statement of Work with etrainu in accordance with this Section 5.

5.2 etrainu will provide the Services from the date specified in the relevant Statement of Work.

5.3 Each Statement of Work must be agreed in the following manner:

(a) the Customer must ask etrainu to provide any or all of the Services and provide etrainu with as much information as etrainu reasonably requests in order to prepare a draft Statement of Work for the Services requested;

(b) following receipt of the information requested from the Customer, etrainu must, as soon as reasonably practicable either:

• inform the Customer that it declines to provide the requested Services; or

• provide the Customer with a draft Statement of Work;

(c) if etrainu provides the Customer with a draft Statement of Work pursuant to Section 5.3(b), etrainu and the Customer must discuss or approve that draft Statement of Work; and

(d) both parties agree to sign the draft Statement of Work when it is agreed.

5.4 Once a Statement of Work has been agreed and signed in accordance with Section 5.3, no amendment will be made to it except in accordance with Section 17.

5.5 Each Statement of Work will be part of this agreement and will not form a separate contract to it.

5.6 If there is an inconsistency between the documents that comprise this agreement, the following order sets out which document prevails to the extent of the inconsistency:

(a) the Schedule (which prevails to the greatest extent, but only in relation to the relevant Service);

(b) the terms set out in these terms and conditions; and

(c) the Statement of Work. 

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6. etrainu’s obligations
   

6.1 etrainu must use its commercially reasonable efforts to provide the Services to the Customer in accordance with the applicable Statement of Work in all material respects.

6.2 etrainu must use its commercially reasonable efforts to meet any performance dates specified in a Statement of Work, but any such dates will be estimates only and time for performance by etrainu will not be of the essence of this agreement.

6.3 etrainu must identify in each Statement of Work a manager who is appointed to make decisions for etrainu in respect of the Services to be performed under that Statement of Work (etrainu’s Representative).

6.4 etrainu shall maintain in force with a reputable insurance company, insurance sufficient to indemnify risks for which it may be responsible, including for its sub-contgractors, agents, and employees, in connection with the execution of the Services herein.  Further, etrainu shall ensure such insurance coverage includes Technology Services/Multimedia/Cyber Liability (with Data Breach and Privacy coverage) covering liabilities arising out of development, design, implementation, hosting, performance or use of the software with limited not less than $1,000,000 each claim and $3,000,000 annual aggregate.

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7. Customer’s obligations
   

7.1 The Customer must:

(a) Comply with all Applicable Laws, including health and safety laws, applicable to its receipt and use of the Services; 

(b) provide reasonable assistance to etrainu in all matters relating to the Services; and

(c) provide to etrainu in a timely manner all documents, information, items and other materials in any form (whether owned by the Customer or a third party) required under a Statement of Work or otherwise reasonably required by etrainu in connection with the Services and ensure that such materials are accurate and complete.

7.2 The Customer:

(a) Must identify in each Statement of Work a manager who is appointed to make decisions for the Customer in respect of the Services to be performed under that Statement of Work (Customer’s Representative); and

(b) Warrants that the Customer’s Representative has authority to contractually bind the Customer on all matters relating to the Services to be performed under that Statement of Work.

7.3 Before the date on which the Services are due to start, the Customer must obtain and maintain all necessary licenses and consents and comply with all Applicable Laws as required to enable etrainu to provide those Services, including in relation to the use of all Customer Pre-Existing IP Rights. 

7.4 The Customer must comply with any additional responsibilities as set out in the relevant Statement of Work.

7.5 If etrainu's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer or its employees, contractors, subcontractors, consultants or other agents, then, without prejudice to any other right or remedy etrainu may have: 

(a) etrainu will be allowed an extension of time to perform its obligations equal to the delay caused by the Customer or its agents; and

(b) etrainu will not be responsible for any costs or losses the Customer sustains or incurs arising directly or indirectly from etrainu’s failure or delay to provide the Services; and

(c) the Customer will reimburse etrainu on written demand for any costs or losses etrainu sustains or incurs arising directly or indirectly from the Customer’s or its agent’s act or omission.

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8. Non-solicitation
   

8.1 The Customer must not, without the prior written consent of etrainu, at any time from the date on which any Services commence to the expiry of 12 months after the completion of such Services, canvass, solicit, interfere with or entice away, or attempt to canvass, solicit, interfere with or entice away, from etrainu or employ or engage or attempt to employ or engage any person who is, or has been, engaged as an employee, consultant, contractor or subcontractor of etrainu in the provision of such Services.

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9. Charges and payment
   

9.1 In consideration of the provision of the Services by etrainu, the Customer must pay the SOW Charges.

9.2 etrainu will invoice the Customer for the SOW Charges at the intervals specified in the Statement of Work. If no intervals are specified, etrainu will invoice the Customer at the end of each month for Services performed during that month.

9.3 The Customer must pay each invoice submitted to it by etrainu within 14 days of receipt to a bank account specified in writing by etrainu from time to time.

9.4 Without prejudice to any other right or remedy etrainu may have:

(a) if any sum due for payment under this agreement is not paid on the due date, the Customer must pay interest on the amount unpaid at the Interest Rate;

(b) interest payable under Section 9.4(a) accrues on a day-to-day basis from the due date up to and including the date of actual payment;

(c) [etrainu may add the interest payable under Section 9.4(a)to the amount due on a monthly basis, and Customer must pay interest on such amount; provided, that nothing in this agreement shall require the Customer to pay interest at a rate that exceeds the rate allowable under Applicable Laws;] and

(d) etrainu may suspend part or all of the Services until payment has been made in full.

9.5 All sums payable to etrainu under this agreement:

(a) are exclusive of sales taxes, and the Customer must in addition pay an amount equal to any sales taxes chargeable on those sums; and

(b) must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

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10. Intellectual Property Rights
    

10.1 Each party acknowledges that all Pre-existing IP Rights remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this agreement, other than as expressly set out in this agreement.

10.2 The Customer grants etrainu a worldwide, perpetual, non-exclusive, royalty-free license to use the Customer Pre-existing IP Rights provided or made available by the Customer for the sole purpose of etrainu performing the Services.

10.3 etrainu grants the Customer a non-exclusive, royalty-free, non-transferable license during the Term to use the etrainu Pre-existing IP Rights owned by etrainu for the sole purpose of the Customer enjoying the Services.

10.4 etrainu:

(a) warrants that the receipt and use of the etrainu Pre-existing IP Rights by the Customer will not infringe the rights, including any Intellectual Property Rights, of any third party;

(b) must keep the Customer indemnified in full against any liabilities, costs, charges, or expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Customer arising out of or in connection with any claim brought by a third party against the Customer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use of the etrainu Pre-existing IP Rights.

10.5 The Customer:

(a) warrants that the receipt and use in the performance of this agreement by etrainu, its agents, subcontractors or consultants of the Customer Pre-existing IP Rights will not infringe the rights, including any Intellectual Property Rights, of any third party; and

(b) must keep etrainu indemnified in full against any liabilities, costs, charges, or expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by etrainu arising out of or in connection with any claim brought by a third party against etrainu for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Pre-existing IP Rights .

10.6 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this Section 10, the Indemnified Party must:

(a) notify the Indemnifying Party in writing of any claim against the Indemnified Party in respect of which it wishes to rely on the indemnity in Section 10.4(b) or Section 10.5(b) (as applicable) (IPRs Claim);

(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party obtains the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;

(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and

(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute. 

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11. Privacy
    

11.1 Each Party:

(a) is, and will maintain its status as, a “service provider” as defined by the California Consumer Privacy Act and the California Attorney General implementing regulations thereunder (collectively, CCPA), and will comply with all of its obligations related thereto under the CCPA, under other applicable laws and regulations, and under this agreement;

(b) will not “sell” any “personal information” (as those terms are defined under the CCPA or other applicable laws) acquired under this agreement (Personal Information);

(c) acknowledges that each Party is the owner and controller of any Personal Information provided by it to the other Party, and the other Party will process such Personal Information solely as and when directed by the owner for the owner’s designated business purposes;

(d) will retain, use, or disclose Personal Information provided by the other Party only for its business purposes and not for any commercial purpose other than as specified in this agreement;

(e) will maintain reasonable security of all Personal Information consistent with the standards of reasonableness applicable to the CCPA and all other applicable laws and regulations; 

(f) will reasonably cooperate with the other Party’s responses to consumer rights requests involving Personal Information provided by the other Party, and at minimum, promptly facilitate the other Party’s ability to identify, retrieve, copy and/or delete specific Personal Information; and

(g) will promptly convey any data subject rights requests regarding Personal Information received by such Party to the other Party and will not itself respond to such requests.

11.2 It is understood and agreed that the CCPA has an effective date of January 1, 2020, that the CCPA remains subject to amendment and to implementing regulations that have not yet been finalized, and that other state legislatures and the U.S. Congress are considering enacting similar laws and regulations (New Privacy Laws). The Parties agree to implement such additional policies as may be necessary in order for the Parties to comply with any applicable New Privacy Laws. The Customer and etrainu will work together in good faith to amend this agreement in order to comply with amendments to the CCPA and applicable New Privacy Laws, if necessary. 

11.3 The Customer warrants that it:

(a) will not provide any Personal Information to etrainu unless that information is necessary for etrainu to perform its obligations under this agreement and then only with etrainu's specific written consent; and

(b) obtained all necessary consents required by CCPA or other applicable laws  from the individuals whose Personal Information it is disclosing to etrainu in the course of this agreement to enable etrainu to lawfully use the Personal Information and perform its obligations in accordance with this agreement.

11.4 Each Party will ensure that its employees, contractors or advisors who are required to handle Personal Information in the course of this agreement are made aware of the obligations of that Party in this Section 11.

11.5 Each Party is responsible under this Section 11 for the acts and omissions of its respective personnel (including subcontractors and advisors), and a breach by any such personnel is a breach by that Party.

11.6 The Customer:

(a) acknowledges that etrainu is reliant on the Customer for direction as to the extent to which etrainu is entitled to use Personal Information disclosed to it in the course of and for the purpose of this agreement; and

(b) indemnifies etrainu for any claim brought by any third party in connection with any act or omission by etrainu in relation to a third party’s Personal Information to the extent that such act or omission resulted directly from the Customer’s instructions or the Customer’s breach of this Section 11.

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12. Confidentiality
    

12.1 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers) or the terms of this agreement, except:

(a) where the information is in the public domain as at the date of this agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);

(b) if the Recipient is required to disclose the information by applicable law or the rules of any recognized securities exchange, provided that the Recipient has (to the extent practicable having regard to those obligations and the required timing of the disclosure) consulted with the provider of the information as to the form and content of the disclosure;

(c) where the disclosure is permitted under this agreement;

(d) if disclosure is made to its officers, employees and professional advisers (and, in the case of etrainu as Recipient, to etrainu’s subcontractors) to the extent necessary to enable the Recipient to properly perform its obligations under this agreement, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;

(e) where the disclosure is required for use in legal proceedings regarding this agreement; or

(f) if the party to whom the information relates has consented in writing before the disclosure.

12.2 Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient's obligations under this Section 12.

12.3 This Section 12 survives termination or expiry of this agreement.

12.4 The obligations of confidentiality in this Section 12 are not affected by the expiry or termination of this agreement.

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13. Limitation of remedies and liability
    

13.1 Nothing in this agreement limits or excludes a party’s liability:

(a) for death or personal injury caused by its negligence or willful misconduct or that of its employees, as applicable;

(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable; 

(c) where liability arises from a breach of Section 10 (Intellectual Property Rights) by it or employees;

(d) where liability arises from a breach of Section 11 (Privacy) by it or employees;

(e) where liability arises under an indemnity; or

(f) where liability cannot be limited or excluded under Applicable Laws.

13.2 Subject to Sections 13.1 and 13.4, each party excludes any liability to the other party, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including any:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of production;

(d) loss of agreements or contracts;

(e) loss of business opportunity;

(f) loss of anticipated savings;

(g) loss of or damage to goodwill;

(h) loss of reputation; or

(i) loss of use or corruption of software, data or information.

13.3 Subject to Section 13.1, 13.2 and 13.4, each party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed 100% of the total charges payable by the Customer to etrainu under this agreement in that calendar year.

13.4 Except as expressly set forth in this Agreement, etrainu makes no warranties, express or implied, with respect to any good or services provided hereunder, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose or any implied warranties arising out of any course of dealing or course of performance, and etrainu hereby disclaims all such warranties. 

13.5 If etrainu is liable to the Customer in relation to a failure to provide goods or services in accordance with this agreement, etrainu’s total liability to the Customer for that failure is limited to, at etrainu’s option, in the case of a supply of goods, etrainu replacing the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, etrainu supplying the services again or paying the cost of having the services supplied again.

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14. Termination
    

14.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b) the other party commences a voluntary case or other proceeding under any bankruptcy or insolvency law, or seeks the appointment of a trustee, receiver, liquidator, custodian, or similar official of all or any substantial part of its property:

(c) any involuntary case or other proceeding under any bankruptcy or insolvency law, seeking the appointment of a trustee, receiver, liquidator, custodian, or similar official for all or any substantial part of the other party’s property, is commenced against the other party, and the other party consents to any relief requested, or if any such proceeding is not stayed or discharged within thirty (30) days;

(d) the other party otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;

(e) the other party proposes a liquidation, winding-up, dissolution or reorganization, moratorium, or other administration involving one or more of its creditors;

(f) the other party ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement; or

(g) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Section 14.1.

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14.2 Without affecting any other right or remedy available to it, etrainu may terminate this agreement with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or

(b) any transaction (or series of related transactions), including any sale of equity of the Customer, any sale of all or substantially all of the assets of the Customer, or any merger or consolidation involving the Customer, in which the Customer’s beneficial owners immediately prior to such transaction will, immediately after such transaction, hold less than fifty percent (50%) of the voting power of the surviving or acquiring entity.

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14.3 On termination of this agreement:

(a) all existing Statements of Work will terminate automatically (unless otherwise agreed in writing);

(b) the Customer must return all Confidential Information, etrainu Intellectual Property Rights or other property of etrainu in the Customer’s care, custody or control to etrainu;

(c) the Customer must immediately pay to etrainu all of etrainu's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, etrainu may submit an invoice, which shall be payable immediately on receipt; and

(d) the following clauses will continue in force: Section 2 (Definitions and Interpretation), Section 8 (Non-solicitation), Section 10 (Intellectual property rights), Section 11 (Privacy), Section 12 (Confidentiality), Section 13 (Limitation of remedies and liability), this Section 14 (Termination), Section 18 (Waiver), Section 20 (Severability), Section 25 (Multi-tiered dispute resolution procedure) and Section 26 (Governing law and jurisdiction).

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14.4 Termination or expiry of this agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

14.5 If requested in writing by the Customer, etrainu must provide hard copies of the Development Training Documents to the Customer within a reasonable time following such a request. If the training is developed in a SCORM based transfer format then on exit from the arrangement etrainu shall on request provide the Customer a copy of the SCORM files only in relation to the training for which the Customer owns the Intellectual Property, which in this case will exclude all generic etrainu training modules. The Customer shall pay etrainu a reasonable hourly fee for the provision of the Customer’s files for the Customer if this is required.

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15. Force Majeure
    

15.1 Neither party is in breach of this agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party's control (Force Majeure Event).

15.2 If a Force Majeure Event occurs, the Affected Party must notify the other party (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

15.3 On providing the notice in Section 15.2, the Affected Party will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented.

15.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

15.5 If the delay due to the Force Majeure Event continues for 60 days, the Non-affected Party may terminate this agreement immediately on providing notice to the Affected Party.

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16. Assignment, novation and other dealings
    

16.1 The Customer may not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of etrainu, whose consent must not be unreasonably withheld.

16.2 If the Customer breaches Section 16.1, etrainu may terminate this agreement.

16.3 Section 16.2 does not affect the construction of any other part of this agreement.

16.4 etrainu may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

16.5 etrainu is permitted to use subcontractors in relation to this agreement and is responsible for the acts and omissions of those subcontractors as if they were its own acts and omissions. 

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17. Variation
    

17.1 An amendment or variation of any term of this agreement must be in writing and signed by each party.

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18. Waiver
    

18.1 No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

18.2 Words or conduct referred to in Section 18.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

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19. Remedies cumulative
    

19.1 Except as provided in this agreement and permitted by law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this agreement.

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20. Severability
    

20.1 If the whole or any part of a provision of this agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

20.2 Section 20.1 does not apply if the severance of a provision of this agreement in accordance with that section would materially affect or alter the nature or effect of the parties' obligations under this agreement.

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21. Entire agreement
    

21.1 This agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

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22. Relationship of the parties
    

22.1 Nothing in this agreement gives a party authority to bind any other party in any way.

22.2 Nothing in this agreement imposes any fiduciary duties on a party in relation to any other party.

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23. Notices
    

23.1 A notice or other communication to a party under this agreement (Notice) must be:

(a) in writing and in English;

(b) signed by the sender or a person authorized to sign on behalf of the sender; and

(c) addressed to that party in accordance with the details in the Statement of Work (or any alternative details given in writing to the sending party in accordance with this Section 23.1):

23.2 A Notice is regarded as given and received at the time set out in the Statement of Work. However, if this means the Notice would be regarded as given and received outside the period between 9.00 am and 5.00 pm (addressee's time) on a Business Day (Business Hours Period), then the Notice will instead be regarded as given and received at the start of the following Business Hours Period.

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Notice delivery method

When Notice is regarded as given and received

By hand to the nominated address

When delivered to the nominated address.

By pre-paid post to the nominated address

At 9.00 am (addressee's time) on the second Business Day after the date of posting.

By email to the nominated email address

Five hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.

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23.3 A Notice must not be given by electronic means of communication other than email.

23.4 The parties agree that notice given in accordance with this Section 23 shall constitute valid service in any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

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24. Counterparts
    

24.1 This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this agreement by signing any counterpart. The MSA Commencement Date is the date of this agreement.

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25. Multi-tiered dispute resolution procedure
    

25.1 A party to this agreement claiming that a dispute has arisen from or in connection with this agreement (Dispute) must not commence court or arbitration proceedings arising from or relating to the Dispute, other than a claim for urgent interlocutory relief, unless that party has attempted to resolve the Dispute in accordance with this Section 25.

25.2 Compliance with this Section 25 is a condition precedent to the right of any party to commence litigation or arbitration arising from, or in connection with, the Dispute.

25.3 A party to this agreement claiming that the Dispute has arisen must give a written notice to the other party or parties to this contract in accordance with Section 23 of this agreement, specifying the nature of the Dispute (Dispute Notice) together with relevant supporting documents.

25.4 Following service of the Dispute Notice, a senior executive officer of the Customer and a senior executive officer of etrainu must meet promptly and attempt in good faith to resolve the Dispute.

25.5 If the senior executive officer of the Customer and the senior executive officer of etrainu are for any reason unable to resolve the Dispute within seven days of it being referred to them, the parties will attempt to settle it in good faith by mediation administered by the American Arbitration Association (AAA), in accordance with the Commercial Mediation Rules of the American Arbitration Association applicable at the time the matter is referred to the AAA and which are deemed to be incorporated into this agreement.

25.6 This Section 25 survives termination or expiry of this agreement.

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26. Governing law and jurisdiction
    

26.1 This agreement is governed by the law in force in the State of Delaware.

26.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Delaware sitting in Wilmington (or, if jurisdiction can be had therein, the U.S. District Court for the District of Delaware) and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.

26.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in Section 26.2 on the basis that:

(a) any proceeding arising out of or in connection with this agreement has been brought in an inconvenient forum; or

(b) the courts described in Section 26.2 do not have jurisdiction.

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27. Preferred Vendor
    

27.1 The Customer hereby agrees that, for the Term of this Agreement, etrainu shall be a preferred vendor for the Customer for online courses, learning management system and other prepared materials offered by etrainu. 

27.2 The Customer agrees to actively promote etrainu and its services to the Customer’s affiliates and members.

27.3 The Customer agrees to promote etrainu’s trademark on its website under its partnership page within 30 days of signing this agreement.

27.4 The Customer agrees to offer etrainu benefits according to its current partnership scheme.

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Schedule 1 - Online Training Module Access, Online Training Module Development and White-labelling

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1. Online Training Module Access
   

1.1 Online Training Module Access is a category of Services provided by etrainu.

1.2 Where the Statement of Work attached to this Schedule 1 indicates that Online Training Module Access is to be provided to the Customer, Section 1 of this Schedule 1 will apply. However, Section 1 of this Schedule 1 only applies to the Online Training Module Access identified in the Statement of Work. 

1.3 etrainu operates a website (Site) to display courses and other training content (Online Training Modules). 

1.4 Where etrainu provides Online Training Module Access, the Customer can use the Site to access Online Training Modules. 

1.5 The Statement of Work will specify:

(a) the initial period in which etrainu will provide Online Training Module Access (Initial Period);

(b) the number of employees, officers, contractors and agents (Users) that are allowed to access an Online Training Module as part of etrainu’s provision of Online Training Module Access to the Customer and other use restrictions;

(c) the Online Training Modules that will be available to Users; and

(d) the SOW Charges

1.6 Unless otherwise agreed in a Statement of Work:
(a) unless either party gives 60 days’ notice before the expiry of the Initial Period, Online Training Module Access will renew for a period equal to the Initial Period (Renewal Period); and

(b) unless either party gives 60 days’ notice before the expiry of a Renewal Period, the Online Training Module Access  will renew for a further Renewal Period (and will continue to do so).  

1.7 etrainu may (in its discretion) permit the Customer’s Users to continue to access their accounts with etrainu after the end of the Initial Period or Renewal Period (as applicable) or following the termination or expiry of this agreement. In that case, the Customer’s Users would be able to access their training record and/or order access to additional Online Training Modules for themselves. 

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2. Customer obligations and responsibilities
   

2.1 The Customer is responsible for all use of Online Training Module Access, and must ensure that no person uses Online Training Module Access:

(a) in breach of this agreement;

(b) for any purpose other than the Customer’s internal business;

(c) in a manner that breaks any law or infringes any person’s rights;

(d) in any way that damages, interferes with or interrupts the supply of Online Training Module Access;

(e) to transmit, publish, communicate, view or create any material that is or may be pornographic, defamatory, offensive, menacing, unwanted, obscene, illegal or unlawful; 

(f) in a way that infringes any third party’s intellectual property rights; or

(g) in a way that disrupts, misuses or excessively uses etrainu’s (or any of etrainu’s third party service provider’s) hardware, bandwidth access, storage space or other resources.

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2.2 Additionally, the Customer must not:

(a) permit any third party to access Online Training Modules;

(b) lease, sublicense, resell or otherwise distribute access to Online Training Modules or content from an Online Training Module;

(c) create derivate works based on any Online Training Module or the Site;

(d) copy, frame or mirror any part or content of any Online Training Module or the Site;

(e) reverse engineer any Online Training Module or the Site; or 

(f) access any Online Training Module or the Site in order to: 

    (i) build a competitive product or service, or 

     (ii) copy any features, functions or graphics of any Online Training Module or the Site, 

(g) and must ensure that no person does any of the acts described in Sections 1.9(a) to (f) of this Schedule 1.

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2.3 The Customer is responsible for the acts and omissions of any user of the Online Training Module Access as if they were the Customer’s own acts or omissions (regardless of whether that user was authorized by the Customer or not). 

2.4 The Customer acknowledges and agrees that it and each User that accesses an Online Training Module is required to accept the Acceptable Use Policy available at https://etrainu.com/acceptable-use-policy. 

2.5 The Customer acknowledges and agrees that etrainu is not responsible for the Customer’s use of the Online Training Module Access, or any actions the Customer takes or conclusions it reaches based on its use of the Online Training Module Access. 

2.6 The Customer must ensure that its computer network is secure. etrainu is not responsible for the security of the Customer’s data or its computer network.

2.7 The Customer represents and warrants to etrainu that:

(a) all information given to etrainu by the Customer in relation to this agreement is correct, complete and not misleading; and

(b) any material that the Customer supplies and that is used by etrainu will not and does not infringe any Intellectual Property Rights of any third party or breach any contractual obligation of the Customer to any third party.

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3. Disclaimers and further obligations
   

3.1 To the extent permitted by law:

(a) etrainu does not guarantee that the Online Training Modules and Online Training Module Access, or any services provided in connection to the Online Training Modules or Online Training Module Access, will always be available, uninterrupted or be error-free; 

(b) the Online Training Modules and Online Training Module Access are provided on an "as is" and "as available" basis, and (except as expressly set out in this agreement) etrainu makes no representations or warranties, express or implied, regarding the operation or availability of the Online Training Modules or Online Training Module Access;

(c) etrainu has no liability in relation to the content of Online Training Modules that has been provided by third parties; 

(d) etrainu may change the content of an Online Training Module from time-to-time;

(e) without limiting the generality of Sections 3.1(a) and 3.1(b) of this Schedule 1, etrainu does not warrant that the Online Training Modules or Online Training Module Access will meet the Customer’s requirements, will operate in any combination that may be selected for use by the Customer or in combination with other software;

(f) etrainu may suspend or withdraw or restrict the availability of all or any part of the Online Training Modules or Online Training Module Access for business and operational reasons, and will use commercially reasonable efforts to give the Customer reasonable notice of any suspension or withdrawal;

(g) etrainu does not warrant that all software errors, defects or inefficiencies will be corrected, and etrainu does not assume any liability for failure to correct any such error, defect or inefficiency; and

(h) etrainu makes no warranty, and the Customer assumes the entire risk, as to the capabilities, suitability, use or performance of any Online Training Module Access under this agreement.

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3.2 Among other things, the operation and availability of the systems used for accessing the Online Training Modules, including computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Online Training Modules. etrainu is not responsible or liable for any of these failures.

3.3 To the extent permitted by applicable law, etrainu excludes all express, statutory and implied conditions, guarantees and warranties in relation to any Online Training Modules and Online Training Module Access other than the warranties expressly set out in this agreement.

3.4 If the Customer chooses, or is provided with, a user identification code, password or any other piece of information as part of etrainu’s security procedures, the Customer must treat such information as confidential. The Customer must not disclose it to any third party. etrainu has the right to disable any user identification code or password, whether chosen by the Customer or allocated by etrainu, at any time, if in etrainu’s reasonable opinion the Customer has failed to comply with any of the provisions of this agreement. If the Customer knows or suspects that anyone other than the Customer or (where relevant) its Users knows the Customer’s user identification code or password, the Customer must promptly notify etrainu.

3.5 Online Training Module Access is directed to users who are at least 13 years old and are residing in and viewing Online Training Modules within the United States. etrainu does not represent that Online Training Module Access is appropriate for use or available in other locations. If the Customer accesses Online Training Modules from outside the United States, it does so at its own risk and it is responsible for compliance with laws applicable to accessing Online Training Modules from its location. 

3.6 If the Customer is an organization, and a User is less than 13 years old, the Customer is responsible for ensuring that parental consent has been provided in relation to that User’s access to Online Training Modules, including any consent required under the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. §§ 6501–6505. Etrainu may require the Customer to demonstrate its compliance with Section 3.5 and this Section 3.6 of this Schedule 1.

3.7 Any descriptions or illustrations on etrainu’s site are published for the sole purpose of giving an approximate idea of the products and services described in them.

3.8 The Customer accepts that features, functions, units of measurement and terminology may differ between countries and features designed for one geographical territory or country may not suit or be available to other countries.

3.9 Introductory, trial or promotional access to Online Training Modules may be subject to additional terms.

3.10 etrainu may, by exception and at our discretion, provide the Customer with a download of content for use on its own e-learning platform. Where this happens, the Customer acknowledges and agrees that etrainu has no obligation to keep that material up-to-date. The Customer also agrees to comply with any licensing and use restrictions upon which etrainu may condition that use.

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4. Termination
   

4.1 In addition to any other obligations, upon termination of this agreement, the Customer must immediately:

(a) cease accessing any Online Training Modules; 

(b) destroy and cease use of any Shareable Content Object Reference Model (SCORM) files given to the Customer from etrainu for use during the term of this agreement and sign a certification to the effect that the Customer has completed this task; and

(c) return to etrainu any of its confidential Information and Intellectual Property Rights in the Customer’s possession or control.

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5. Support 
   

5.1 Unless etrainu agrees otherwise, it has no obligation to provide any services or products to the Customer in relation to the Online Training Module Access, other than to use reasonable efforts to provide Online Training Module Access and as set out in the etrainu Support Services Policy, available at https://etrainu.com/support-services-policy, as updated by etrainu from time to time. 

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6. Audit
   

6.1 For a period of at least seven (7) years following the expiry or earlier termination of this agreement, the Customer will maintain complete and accurate records concerning:

(a) Users enrolled in any Online Training Module;

(b) the distribution of etrainu materials (including pursuant to Section 3.10 of this Schedule 1); and

(c) Log-Ins and passwords (if applicable).

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6.2 On etrainu’s request, the Customer must allow etrainu or a third party nominated by etrainu access during normal business hours to the Customer’s records and to any premises, systems, equipment, personnel and information relating to this agreement in order to audit the Customer’s compliance with this agreement.

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7. White-labelling
   

7.1 White-labelling is a category of Services provided by etrainu.

7.2 Where the Statement of Work attached to this Schedule 1 indicates that White-labelling is to be provided to the Customer, Section 7 of this Schedule 1 will apply. However, Section 7 of this Schedule 1 only applies to the White-labelling identified in the Statement of Work. 

‍7.3 White-labelling allows the Customer’s Online Training Module Access (pursuant to Section 1 of this Schedule 1) to be by way of a unique custom-branded instance of the Site.

7.4 The Statement of Work will contain any SOW Charges and other specifics for the white-labelled instance of the Site.  

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8. Online Training Module Development
   

8.1 Online Training Module Development is a category of Services provided by etrainu.

8.2 Where the Statement of Work attached to this Schedule 1 indicates that Online Training Module Development is to be provided to the Customer, Section 8 of this Schedule 1 will apply. However, Section 8 of this Schedule 1 only applies to the Online Training Module Development identified in the Statement of Work. 

8.3 When providing Online Training Module Development, etrainu will develop Online Training Modules for the Customer that can be displayed on a white-labelled version of the Site (pursuant Section 7 of this Schedule 1) or its own e-learning platform (where agreed pursuant to Section 3.10 of this Schedule 1).

8.4 The parties agree to the following:

(a) the Customer will provide etrainu with materials (Customer Material) that the Customer desires to be transformed into an online training module (Online Training Module);

(b) etrainu and the Customer will work together to transform the Customer Material into an Online Training Module;

(c) the Customer will have the opportunity to review the Online Training Module and either:

       (i) approve the Online Training Module; or

       (ii) request that etrainu makes modifications to the Online Training Module.

8.5 The Statement of Work will set out:

(a) a description of the intended Online Training Module; 

(b) a list of the Customer Materials that etrainu expects to receive from the Customer; 

(c) the date by which the Customer must provide etrainu with the Customer Materials;

(d) the target date (if any) for the creation of the Online Training Module; and

(e) any SOW Charges.

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9. Responsibility
   

9.1 The Customer acknowledges that at all times, it is responsible for ensuring the accuracy of any Online Training Module. 

9.2 For as long as the Online Training Module is available on any Site hosted by etrainu, the Customer must immediately notify etrainu if any part of the Online Training Module has become inaccurate or out-of-date.

9.3 Where changes need to be made to the Online Training Module, etrainu will charge for its time making those changes at its then-current rate.

9.4 Where etrainu has reasonable grounds to assume that the Online Training Module is out-of-date or inaccurate, it may, without liability to the Customer, remove that Online Training Module from any Site hosted by etrainu and notify the Customer. 

9.5 The Customer indemnifies etrainu, its employees, directors, officers, contractors, advisors and agents (etrainu Indemnified Persons) against all liabilities, costs, charges, expenses, damages and losses, and all interest, penalties and legal costs (including reasonable attorneys’ fees) and all other reasonable professional costs and expenses suffered or incurred by etrainu Indemnified Persons in connection with any allegation, debt, cause of action, liability, claim, proceeding, suit or demand arising in connection with an Online Training Module created pursuant to Online Training Module Development. For the avoidance of doubt, no cap or exclusion of liability applies to the Customer’s liability under this indemnity. 

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Schedule 2 - Content Partner Services

1. Content Partner Services
   

1.1 Content Partner Services is a category of Services provided by etrainu.

1.2 Where the Statement of Work attached to this Schedule 2 indicates that Content Partner Services are to be provided to the Customer, this Schedule will apply. However, this Schedule only applies to the Content Partner Services identified in the Statement of Work attached to this Schedule 2. 

1.3 When providing Content Partner Services, the parties agree to the following:

(a) etrainu and the Customer will work together to transform the Customer Material into content that can be displayed on the Standard etrainu learning management system (LMS) as an Online Training Module;

(b) the Customer will have the opportunity to review the Online Training Module and either:

      (i) approve the Online Training Module; or

      (ii) request that etrainu makes modifications to the Online Training Module; 

(c) once the Customer has approved the Online Training Module, it will be displayed by etrainu on the Standard etrainu LMS where etrainu’s customers may pay etrainu to access that Online Training Module; 

(d) etrainu and the Customer will promote and market the availability of the Online Training Module on the Standard etrainu LMS for as long as it is displayed on the Standard etrainu LMS; and

(e) etrainu may agree (as part of the Statement of Work), to pay the Customer commission in relation to etrainu’s supply of paid access for Standard etrainu LMS users in relation to the Online Training Module. 

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2. Statement of Work
   

2.1 The Statement of Work with respect to the Content Partner Services will set out:

(a) a description of the intended Online Training Module; 

(b) a list of the Customer Materials that etrainu expects to receive from the Customer; 

(c) the date by which the Customer must provide etrainu with the Customer Materials;

(d) the target date (if any) for the creation of the Online Training Module;

(e) any SOW Charges; and

(f) any commission that will be paid by etrainu to the Customer in relation to etrainu’s supply of paid access to the Online Training Module.

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2.2 Following the Customer’s approval of the Online Training Module, and subject to the rest of this Schedule 2 and the Customer’s compliance with the agreement, etrainu will make the Online Training Module available on the Standard etrainu LMS for paid access by etrainu’s customers. 

2.3 The parties will review this arrangement on or about the one year anniversary of the Online Training Module first being made available on the Standard etrainu LMS. During such review, either party may elect to end the availability of the Online Training Module on the Standard etrainu LMS. 

2.4 Once the Online Training Module is made available on the Standard etrainu LMS, the relevant Statement of Work will continue until that Online Training Module is no longer available on the Standard etrainu LMS. 

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3. Responsibility
   

3.1 The Customer acknowledges that at all times, it is responsible for ensuring the accuracy of any Online Training Module. 

3.2 For as long as the Online Training Module is available on the Standard etrainu LMS, the Customer must immediately notify etrainu if any part of the Online Training Module has become inaccurate or out-of-date.

3.3 Where changes need to be made to the Online Training Module, etrainu will charge for its time making those changes at its then-current rate.

3.4 Where etrainu has reasonable grounds to assume that the Online Training Module is out-of-date or inaccurate, it may, without liability to the Customer, remove that Online Training Module from the Standard etrainu LMS and notify the Customer. 

3.5 The Customer indemnifies etrainu, its employees, directors, officers, contractors, advisors and agents (etrainu Indemnified Persons) against all liabilities, costs, charges, expenses, damages and losses and all interest, penalties and legal costs (including reasonable attorneys’ fees) and all other reasonable professional costs and expenses suffered or incurred by etrainu Indemnified Persons in connection with any [third party] allegation, debt, cause of action, liability, claim, proceeding, suit or demand arising in connection with an Online Training Module created pursuant to Content Partner Services. For the avoidance of doubt, no cap or exclusion of liability applies to the Customer’s liability under this indemnity. 

3.6 The parties may, from-to-time, agree a recommended retail price for etrainu’s supply of access to the Online Training Module on the Standard etrainu LMS. However, the price at which etrainu supplies access to the Online Training Module on the Standard etrainu LMS will be set by etrainu in its sole discretion. 

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4. Intellectual Property Rights
   

4.1 Unless otherwise agreed, all Online Training Modules must be co-branded so as to feature both the Customer’s and etrainu’s logos and branding. 

4.2 Except to the extent that it includes any Customer Material, the Intellectual Property Rights in all Online Training Modules are owned by etrainu from the date of creation (Developed IP). The Customer shall assign, and hereby does assign, to etrainu all right, title and interest of the Customer in the Developed IP.  For purposes of the copyright laws of the United States, Developed IP constitutes “work made for hire” except to the extent such Developed IP cannot by law be “work made for hire.”

4.3 If any of the Customer's personnel is the author or inventor of any Developed IP, the Customer shall cause the relevant member of the Customer's personnel (a) to assign to etrainu all such Customer personnel’s rights in the Developed IP and (b) to take such other actions as etrainu may reasonably request to perfect and enforce etrainu’s rights in the Developed IP.

4.4 The Customer must on request by etrainu obtain from the Customer's personnel written, unconditional and irrevocable assignments of the Developed IP to etrainu, including waivers of any moral rights in the Developed IP for the benefit of etrainu, its successors, assignees and licensees ,in a form reasonably acceptable to etrainu and provide copies of such assignments within 7 days of etrainu's request.

4.5 Customer Material is deemed to be part of the Customer Pre-Existing IP Rights for the purpose of this agreement.

4.6 If requested by the Customer, etrainu must provide the Customer with a printed or PDF copy of the final Online Training Module. 

4.7 Unless etrainu agrees in advance: 

(a) nothing in this Schedule 2 requires etrainu to provide the Customer with a copy of the SCORM files that relate to the Online Training Module; and

(b) the Customer is not permitted to display, and must not allow any third party to display, the Online Training Module on its own or a third party e-learning or similar platform. 

4.8 This Section 4 of Schedule 2 survives termination or expiry of this agreement. 

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5. Additional termination right
   

5.1 Except in the event of termination for the Customer’s default, (a) etrainu will continue to supply partner products to the end user where the corresponding Order was placed before the termination took effect, (b) this agreement will be deemed to continue, for the remainder of the relevant license period, and (c) the end user must continue to pay the applicable SOW Charges for the content that is agreed upon.

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Schedule 3 - Resale Rights

1. Resale Rights
   

1.1 Resale Rights are a category of Services provided by etrainu.

1.2 Where the Statement of Work attached to this Schedule 3 indicates that Resale Rights are included, this Schedule 3 will apply. However, this Schedule 3 only applies to the Resale Rights identified in the Statement of Work.

1.3 Resale Rights entitle the Customer to resell access to certain etrainu products and services that are identified as Resold Products in the Statement of Work attached to this Schedule 3 to the customers of the Customer (Resold Customers). 

1.4 The Customer must enter into a written contract with each Resold Customer in relation to the supply of the Resold Products (Resold Customer Contract).

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2. Appointment
   

2.1 etrainu appoints the Customer as a non-exclusive reseller of Resold Products for the Resale Term set out in the Statement of Work attached to this Schedule 3, subject to the terms of this agreement.

2.2 Unless otherwise agreed, the Customer acknowledges that etrainu or other resellers appointed by etrainu may also market and supply the Resold Products to Resold Customers and other customers of the Customer during the Resale Term and after, including for the purpose of resale.

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3. Nature of resale
   

3.1 The Customer supplies the Resold Products to the Resold Customer as principal and not as agent of etrainu.

3.2 The Customer must order Resold Products from etrainu in accordance with this agreement to meet the Customer’s obligations to a Resold Customer under a Resold Customer Contract.

3.3 The Customer’s obligations under this agreement are independent of any obligation that the Resold Customer owes to the Customer under a Reseller Customer Contract. In particular, the Customer must pay all fees under this agreement regardless of whether the Resold Customer pays the Reseller any amounts owing under a Reseller Customer Contract.

3.4 The fees the Customer charges the Resold Customer for the Resold Products under a Resold Customer Contract are set by the Customer in its sole discretion, except if etrainu sets a maximum resale price, in which case the Customer cannot charge higher than maximum resale price but may charge that price or lower.

3.5 The Customer acknowledges and agrees that the Customer is solely responsible for determining and establishing all systems and marketing plans suitable for selling goods and services (including the Resold Products), conducting business and promoting the Resold Products in connection with this agreement.

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4. Customer ordering Resold Products
   

4.1 The Customer may request Resold Products from time to time by giving etrainu an order in the format required by etrainu from time-to-time (Order).

4.2 If etrainu notifies the Customer that it accepts the Order then etrainu will sell the Resold Products requested in the Order to the Customer, and the Customer will buy those Resold Products from etrainu. 

4.3 For clarity, etrainu may choose not to accept an Order. etrainu will not unreasonably refuse to accept Orders.

4.4 Purchases of Resold Products by the Customer from etrainu are for resale only, and such products may not be used by the Customer.

4.5 Each Order must set out the information required by etrainu from time to time.

4.6 The SOW Charges payable by the Reseller for the Resold Products are specified in the corresponding Statement of Work.

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5. Sale and promotion of the Resold Products by the Customer
   

5.1 The Customer must not do or omit to do anything that adversely affects the reputation of etrainu or the Resold Products, including making disparaging statements about etrainu or the Resold Products.

5.2 The Customer must ensure that each Resold Customer accepts the etrainu Terms and Conditions available at https://etrainu.com/etrainu-terms-conditions and complies with those terms for as long as the Resold Customer uses, accesses or otherwise enjoys any part of the Resold Products. This must form an obligation of the Resold Customer in each Resold Customer Contract.

5.3 The Customer must immediately inform etrainu if the Customer becomes aware of any breach of a Resold Customer Contract.

5.4 The Customer must follow the reasonable request of etrainu (including in relation to suspending or terminating the Resold Customer’s access to the Resold Products or commencing proceedings against the Resold Customer) in relation to the Customer enforcing its rights against the Resold Customer (including in the event of a breach of the Resold Customer Contract).

5.5 The Customer must comply with any reasonable direction given by etrainu relating to the promotion and marketing of the Resold Products.

5.6 The Customer must not make any representation or give any warranty relating to or in connection with the Resold Products, except as specifically authorized by etrainu.

5.7 etrainu may, from time to time, require the Customer (and any or all relevant staff) to complete refresher or other training to promote the Resold Products.

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6. Additional termination right
   

6.1 In addition to any other termination rights, etrainu may terminate the Resale Rights at any time by giving 1 month’s written notice to the Customer.

6.2 On termination of this agreement the Customer must return to etrainu all Confidential Information, etrainu Intellectual Property Rights or other property of etrainu in the Customer’s care, custody or control.

6.3 Except in the event of termination for the Customer’s default, (a) the parties agree that the termination is only intended to terminate the Customer’s appointment as reseller and its ability to place Orders of the Resold Products with etrainu, (b) etrainu will continue to supply Resold Products to Resold Customers where the corresponding Order was placed before the termination took effect, (c) this agreement will be deemed to continue, for the remainder of the relevant license period, and (d) the Customer must continue to pay the applicable SOW Charges for those Resold Products.

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7. Claims
   

7.1 The Customer must immediately notify etrainu if any third party (including Resold Customer) makes or threatens to make a complaint or claim in connection with any of the Resold Products.

7.2 The Customer must not resolve or settle any complaint or claim in connection with any of the Resold Products that may result in etrainu incurring any liability to any person without etrainu’s prior consent.

7.3 Subject to Section 7.2 of this Schedule 3, the Customer must promptly deal with all complaints or claims from Resold Customers in respect of the Resold Products.

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8. Indemnity
   

8.1 The Customer is liable for, and indemnifies etrainu from and against, all loss, expense, claim, liability or damage (including reasonable attorneys’ fees) incurred or suffered by etrainu, however caused, in connection with: 

(a) any breach of this Schedule 3 by the Customer; and

(b) any claim brought by a Resold Customer or other third party against etrainu in connection with the Resold Products. 

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‍Schedule 4 - Referral Agreement

1. Background
   

1.1 etrainu is an eLearning business that has created and owns Intellectual Property Rights in its Learning Management System (LMS) and online courses.

1.2 Where the Statement of Work attached to this Schedule 4 indicates that this Schedule 4 will apply, Customer to which this Schedule 4 relates (Referrer) may source and refer to etrainu potential purchasers of the Courses based on the terms and conditions of this Schedule 4.

1.3 etrainu has agreed to pay a Rebate earned by the Referrer in accordance with the terms and conditions of this Schedule 4.

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Operative provisions

2. Definitions and Interpretations 
   

2.1 In this Schedule 4 unless the context otherwise requires:

"Commencement Date" means the date as of which the last of the Parties executes the Statement of Work attached to this Schedule 4;

"Rebate" means the payments to be paid in respect of sales of Courses by etrainu to Referrer under this Schedule 4 on the commission basis set out in the Statement of Work attached to this Schedule 4; 

"Confidential Information" means all confidential and proprietary information of a Party, including information of the Party relating to:

• its personnel, policies, customers, marketing and business strategies;
• its know-how, Intellectual Property Rights and trade secrets; and
• the terms of this Agreement;

but excluding information which is at the time of the relevant disclosure already lawfully in the public domain other than as a result of a breach of this Agreement;

“Courses” means e-learning training programs delivered on the etrainu LMS which may be owned by etrainu or another party.  

“Accredited Courses” means Courses delivered under the auspices of an accrediting agency that is recognized by the U.S. Department of Education.

"Customization" means any modification to the Courses developed by etrainu for a Customer (including the end product of such modification);

"Initial Term" means the period of 12 months from the Commencement Date; 

"Intellectual Property Rights" means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

“Known Prospect” means a person, entity or organization with whom etrainu is, at the time of provision by Referrer of details of the Lead, or at any time previously, has been in discussions/negotiations with etrainu for a Software License; 

"Lead" means a prospective purchaser of Courses identified by Referrer to etrainu; 

“Modification” means any modification, enhancement or amendment to the courses but does not include an Update;

“Net Revenue” means gross revenue actually received by etrainu less refunds paid and any sales or similar taxes, if any, and for the avoidance of doubt excludes any revenue attributable to other goods or services (not being a license of the Software) that may be provided by etrainu or any third party to any purchaser of Courses, such as professional services, support or the provision of equipment; 

"Party" means etrainu or Referrer as the context requires;

"Qualifying Referral" means a Lead generated by Referrer, being a person, entity or organization who is not a Known Prospect, or an individual within an organization that is a Known Prospect; 

"Qualifying Software License" means a Software License that is entered into as a consequence of Referrer providing a Qualifying Referral during the Term, and for the avoidance of doubt excludes any Software License that was entered into or negotiated prior to the Commencement Date and any other Software License procured other than by Referrer providing a Qualifying Referral; 

"Software" means the software application developed by etrainu known as “etrainu” and (unless the context requires otherwise) includes associated services, and except where the context requires otherwise, shall include any Customization, Modification and/or Update thereto;

"Software License" means a license or subscription between etrainu and a user entitling the user to use the Software;

"Term" means the Initial Term and any extension or renewal thereto;

"Trademarks" means “etrainu” and any stylized version owned or used by etrainu; and

"Update" means any "bug fix" in respect of the Software and any new release of the Software created by etrainu during the Term.

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2.2 In this Schedule 4, unless expressed to the contrary:

(a) words importing the singular shall include the plural and vice versa;

(b) a reference to a party to a document includes the party's successors and permitted assigns;

(c) no provision of this Schedule 4 will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of this Agreement or that provision;

(d) any reference to an amount of money is a reference to that amount in United States Dollars; and

(e) for the purposes of interpretation, section headings shall be disregarded.

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3. Term and appointment 
   

3.1 etrainu appoints Referrer on a non-exclusive basis to source and refer Leads to etrainu during the Term.  

3.2 For the avoidance of doubt nothing in this Schedule 4 prevents etrainu conducting its own direct marketing and sales, nor appointing any third party to perform services to do so. 

3.3 Unless either Party terminates this Schedule 4 in accordance with Section 13 of this Schedule 4, the Term will auto-renew for another 12 months after the Initial Term [and each successive renewal term]. 

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4. Referrer entitlements and obligations 
   

4.1 Referrer is entitled and encouraged to:

(a) identify Leads;

(b) promote the etrainu offerings by means such as (but not limited to) (a) promoting the Courses, the Learning Management System and the Assess App on the Referrer’s websites, (b) digital marketing throughout the Referrer’s databases, (c) conducting demonstrations of the courses to Leads and (d) making telephone calls to Leads. It should be noted that where the Courses are Accredited Courses there may be a requirement to include specific information on the Referrer’s websites or other promotional materials; 

(c) respond to enquiries received from Leads in respect of the Courses; and

(d) refer Leads to etrainu. 

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4.2 Referrer must:

(a) refrain from making any commitment or representation or giving any warranty to any prospective purchaser or Lead in relation to the Software or any other goods or services provided by etrainu;

(b) use commercially reasonable efforts to ensure that etrainu’s personnel are introduced to the appropriate personnel within each Lead’s organization, bearing in mind their technical competence and decision-making authority within the organization; and

(c) in performing this Schedule 4, comply with all applicable laws and regulations.

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4.3 Referrer agrees that it is not entitled to grant or purport to grant licenses of the Courses directly to any person and shall not be a party to any Software License, which shall be entered into by and between purchasers of the Courses and etrainu only in accordance with etrainu’s then standard license terms or such other terms as etrainu determines in its sole discretion. 

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5. Registering a Referral
   

5.1 Referrer may register a Lead by sending an email to sales@etrainu.com with the name, contact and any other pertinent details of the Lead.  Referrer must ensure that it has the Lead’s permission to provide their details to etrainu. 

5.2 etrainu will as soon as practicable acknowledge to Referrer its receipt of the Lead and will notify Referrer as to whether the Lead is a Known Prospect or a Qualifying Referral.  If the Lead is a Known Prospect then no Rebate will apply in the event that etrainu has entered into or subsequently enters into an agreement with that Known Prospect.  etrainu must act honestly and in good faith in performing this function. 

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6. Rebates
   

6.1 During the Term etrainu shall pay Rebates to Referrer on the basis set out in the Statement of Work attached to this Schedule 4.

6.2 Rebates shall be payable on the 15^th of each month following the previous month.  Rebates shall be only payable once the course fees to which those Rebates pertain have been received by etrainu from the relevant purchasers of the Courses.

6.3 etrainu shall keep proper records of all revenue from sales and account honestly to Referrer in respect of all Rebates earned.

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7. Marketing and Promoting of the course
   

7.1 Referrer agrees that all advertising and promotional materials that it distributes or makes available (whether electronic or hard copy) in relation to the Courses must either be supplied directly by etrainu or must have the prior written approval of etrainu, such approval not to be unreasonably withheld.  For the avoidance of doubt, and without limitation, the Parties agree that such approval may be considered reasonably withheld where any material proposed for use by Referrer:

(a) is not in accordance with etrainu’s branding and design practices (whether or not contained in a style guide or similar document);

(b) does not reflect or is contrary to etrainu’s brand and product values and image;

(c) contains misleading, inaccurate, inadequate, incomplete or otherwise damaging information; or

(d) is or is likely to be contrary to law.

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7.2 Without limiting any other provision of this Schedule 4, Referrer agrees to comply with any reasonable directions provided by etrainu in respect of the marketing of the Courses.

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7.3 Referrer is not granted any license to use the Trademarks (whether registered or not), except in the form and manner in which, and on media on which, they are supplied by etrainu to Referrer from time to time, or as otherwise agreed between the Parties in writing.  Notwithstanding the foregoing:

(a) Referrer shall comply with etrainu's reasonable directions from time to time regarding any use of the Trademarks;

(b) in any material or publication issued by Referrer in which the Software and the Trademarks are referred to, Referrer shall include a legible statement as to etrainu's ownership of such rights, in such form and with such prominence as etrainu requires; and

(c) without limiting any other provision of this Schedule 4, Referrer shall submit to etrainu for prior approval representative samples of all promotions, advertising, technical and other material and packaging proposed to be used by Referrer in connection with this Schedule 4 that are different from those permitted in any trademark/trade name/branding manuals or guidelines provided by etrainu from time to time.

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7.4 Referrer agrees not to publish or issue any statement to the media regarding the Software or the Courses without etrainu’s prior written consent in each instance.

7.5 Referrer must ensure that all statements and representations (including any representation by silence or omission) made to members of the public (including but not limited to Leads) in relation to etrainu or the Software or the Courses are accurate, not misleading and take into account all up-to-date information.

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8. Acknowledgements
   

8.1 The Parties agree and acknowledge that:

(a) a purchaser’s access to and use of the Software is contingent upon the purchaser’s entry of and ongoing compliance with a Software License with etrainu.  Without limiting any other provision, etrainu shall not be liable to Referrer (or any related entity), its officers or employees in respect of any loss or damage arising as a result of or pursuant to the termination of a Software License for a purchaser’s breach thereof;

(b) etrainu shall be entitled to refuse to grant (or if granted to early terminate) a Software License to any Lead or proposed purchaser on reasonable grounds, including etrainu’s reasonable concerns with that Lead or proposed purchaser’s solvency, its reputation generally or ability to fully comply with the terms of any Software License;  and

(c) neither Party is a partner, agent or employee of the other Party and neither Party shall have the power or authority, directly or indirectly or through its servants or agents, to bind the other Party to any agreement with any third party or otherwise to contract, negotiate or enter into a binding relationship for or on behalf of etrainu, except if and as expressly provided in this Agreement.

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9. Sales Tax
   

9.1 Except where this Schedule 4 states otherwise, all prices under this Schedule 4 are expressed exclusive of sales taxes.

9.2 If a Party makes a taxable purchase under this Schedule 4, then the Party liable to pay for the taxable purchase must also pay to the supplier the sales tax payable in respect of the taxable purchase at the time payment for the taxable purchase is due.

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10. Intellectual Property Rights
    

10.1 The parties agree and acknowledge that all Intellectual Property Rights in and to the Software and Courses, the Trademarks and any materials provided to Referrer by etrainu in relation to the Software and Courses under this Agreement, are owned and shall be owned exclusively by etrainu. 

10.2 Content is delivered exclusively on the etrainu LMS, so any license to the Referrer under the terms of this Schedule 4 is limited to use of marketing materials and Trademarks as outlined in Section 7 and to the extent necessary for the Referrer to perform services in securing purchasers for etrainu under this Schedule 4 and only during the Term. 

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11. Copying and Modification of Software and Courses
    

11.1 Referrer shall not copy or alter or modify or in any other way interfere with the Software or Course content without the prior written permission of etrainu.  Without limiting the foregoing or any other provision of this Schedule 4, title in any modifications to the Software, including any made contrary to the obligations of the previous sentence, shall immediately vest in etrainu.

11.2 Any copying, alteration, modification or other interference to which etrainu consents in writing shall be subject to such terms and conditions as etrainu may impose in its sole discretion.

11.3 The Referrer shall not make any attempt to copy, reverse engineer, imitate or duplicate the Software or Course content of etrainu in any form.

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12. Confidential Information
    

12.1 Neither Party shall, without the prior written approval of the other Party, disclose or permit the disclosure of the Confidential Information of the other Party except to those persons within the Party's organization who have a need to know.

12.2 A Party shall not be in breach of Section 12.1 of this Schedule 4 in circumstances where it is legally compelled to disclose any Confidential Information of the other Party after first advising the other Party.

12.3 A Party will be able to disclose Confidential Information of the other Party without breaching this Agreement where the information (i) is already publicly available, (ii) has been disclosed to the Party by a third party without any obligation of confidentiality to the third party, (iii) has been independently developed by the Party without access to Confidential Information of the other Party.

12.4 Each Party shall take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of this Schedule 4, do not make public or disclose the Confidential Information of the other Party.

12.5 Each Party shall on demand by the other Party return to the other Party any documents or materials embodying any Confidential Information of the other Party supplied in connection with this Agreement.

12.6 This Section 12 of this Schedule 4 shall survive the termination of this Schedule 4. 

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13. Termination
    

13.1 Without limiting the generality of any other section of this Schedule 4, either Party (‘the aggrieved party’) may terminate this Schedule 4 immediately by notice to the other in writing if:

(a) the other Party is in breach of any term of this Schedule 4 and such breach is material and not capable of remedy or, if capable of remedy, if such breach is not remedied within 14 days of the aggrieved party’s sending of a notice of breach;

(b) the other Party becomes unable to pay its debts as and when they fall due, or becomes or threatens or resolves to become or is in jeopardy of becoming subject to any form of bankruptcy or insolvency administration; 

(c) there is a material change in control of the other Party; or

(d) the other Party ceases or threatens to cease conducting its business in the normal manner. 

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13.2 etrainu may terminate this Schedule 4 by giving 90 days’ notice to the Referrer.

13.3 Termination of this Schedule 4 pursuant to this Section 13 will not prejudice any other rights or remedies which a Party has against the other Party.  

13.4 On termination of this Schedule 4 all Rebates due to the Referrer in relation to current Course sales will be settled within 60 days of the date of termination, giving consideration that payment is made to the Referrer by etrainu only upon receipt of funds from the purchaser. 

13.5 In the case where the Referrer has secured a contract with the purchaser for ongoing sales of etrainu Courses, then the Rebates will continue to be paid to the Referrer on Courses sold by the Referrer to these contracted purchasers for the term of the contract at the Current Licenses Rate as defined in Attachment 1 to this Schedule 4. Once the contract expires, if a new arrangement is negotiated by etrainu or, on agreement by etrainu, the Referrer, then the Rebates will continue to be paid to the Referrer at the Renewing Licenses Rate as outlined in Attachment 1 to this Schedule 4.

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14. Warranties
    

14.1 Each Party warrants to the other that:

(a) it is under no legal or other impediment that may prevent it fully carrying out its obligations under this Schedule 4;

(b) no conflict of interest exists or is likely to arise in the performance of its obligations under this Schedule 4; and

(c) it will comply with all laws and regulations in the course of performing this Schedule 4.

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15. Dispute Resolution
    

15.1 The procedure set out in this Section 15 must be followed in relation to the resolution of a dispute concerning the interpretation of a term of this Schedule 4 or of the Parties' rights or obligations pursuant to this Schedule 4 ("Dispute").

15.2 Upon any Dispute arising, a Party may give written notice to the other Party that a Dispute exists ("Dispute Notice").

15.3 The Dispute Notice shall provide the recipient with the full particulars of the matters in Dispute.

15.4 The timetable and process for resolving a Dispute pursuant to a Dispute Notice is as follows:

(a) within 5 working days of receipt of a Dispute Notice, the recipient shall hold discussions in good faith in an attempt to resolve the Dispute;

(b) if the Dispute is not resolved within 20 days of the commencement of the meeting referred to in Section 15.4(a) or if the meeting referred to in Section 15.4(a) has not taken place within the 5 day period, the parties to the Dispute shall refer the matter to mediation;

(c) within 5 working days following the expiry of the relevant period in Section 15.4(b), the parties to the Dispute must attempt to agree on the appointment of a mediator. In the absence of agreement on the appointment of a mediator, a mediator is to be appointed in accordance with the Commercial Mediation Rules of the American Arbitration Association, with the costs of the mediation to be borne equally by the parties to the Dispute;

(d) the parties to the Dispute shall use their best endeavors to ensure the mediation takes place within 30 days of a mediator being appointed; and

(e) any mediation that takes place pursuant to the operation of this Section 15 is to take place in Wilmington, Delaware, in accordance with the Commercial Mediation Rules of the American Arbitration Association.

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16. Miscellaneous
    

16.1 This Schedule 4 (together with the attached Statement of Work) constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, with respect to such subject matter. 

16.2 The benefit of this Schedule 4 shall not be assigned by a Party without the prior written consent of the other Party; provided, that etrainu may, without the consent of the Referrer, assign etrainu’s rights and obligations hereunder to any successor to all or substantially all of etrainu’s business.  Either Party may consent to the assignment or novation of this Agreement by the other Party subject to such conditions as it chooses to impose. 

16.3 No right under this Schedule 4 shall be waived except by a notice in writing signed by such Party.  A waiver by a Party pursuant to this Section 16.3 will not prejudice its rights in respect of any subsequent breach of this Schedule 4 by the other Party. 

16.4 The provisions of this Schedule 4 shall not be amended or varied, except by an agreement in writing signed by the Parties. 

16.5 The provisions of this Schedule 4 that are capable of surviving termination shall do so.

16.6 If any provision of this Schedule 4 is held invalid, unenforceable or illegal for any reason, this Schedule 4 shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

16.7 This agreement does not create any relationship of employment or agency. 

The law governing this Schedule 4 will be the law of the State of Delaware, and the Parties irrevocably submit to the non-exclusive jurisdiction of its courts and tribunals sitting in Wilmington (or, if jurisdiction can be had therein, the U.S. District Court for the District of Delaware) and courts of appeal from them.

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