By signing up for the Webco LMS (“WebcoLMS”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). Any new features or tools which are added to the current Service shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at www.webcolms.com/terms. BY USING THIS WEBSITE AND THE SERVICES, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ORGANIsATION, COMPANY, OR ENTITY FOR WHICH YOU ACT (“Customer” or “you”) AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
WebcoLMS reserves the right to update and change the Terms of Service by posting updates and changes to the WebcoLMS website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
- You must be 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use this Service.
- You must provide your full legal name, current address, a valid email address, and any other information needed in order to complete the signup process.
- You acknowledge that WebcoLMS will use the email address you provide as the primary method for communication.
- You are responsible for keeping your password secure. WebcoLMS cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password.
- You are responsible for all activity and content such as videos, files, data, graphics, photos and links that is uploaded under your WebcoLMS account (“Course Content”). You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any term in the Terms of Service as determined in the sole discretion of WebcoLMS will result in an immediate termination of your services. Which means
Don’t use WebcoLMS for anything illegal or transmit any harmful code. Remember that with any violation of these terms we will cancel your service.
If we need to reach you, we will send you an email.
- AGREEMENT DEFINITIONS
“Affiliate” means any entity that, directly or indirectly, controls, is under common control with, or is controlled by a party. For this purpose, “control” means the power to direct or cause the direction of the management or policies of such entity, whether through beneficial ownership of voting securities, by contract or otherwise.
“Authorised User” means Customer’s and/or Customer’s Affiliates’ employee, contractor, agent, or any other individual authorised by Customer to access and use the Services, via Customer’s account, for the purpose specified herein. Customer is responsible for Authorised Users’ compliance with this Agreement.
“Customer Delivered Course” means a course or course Customer makes available, presents, or otherwise administers to Authorised Users.
“Customer Course Store Course” means a course and related materials Customer requests to make available to third parties via the LMS Course Store.
“Documentation” means the user guides, online help, training materials and any other documentation made available to the Customer regarding the use of Services.
“Effective Date” means the first date that Customer accesses the Services.
“LMS Services” means services and materials relating to structuring and presenting online courses for Authorised Users, including WebcoLMS’ proprietary course content.
“Order” means an ordering document entered into by and between WebcoLMS and Customer.
“Portal” means the website address assigned and/or designated by WebcoLMS to the Customer to access the Services.
“Services” means WebcoLMS’s hosted internet-accessible learning management solution service, under the name WebcoLMS made available to Customer via the Portal.
“WebcoLMS” means Web Choice Online Pty Ltd, an Australian based company, having its registered office at 310/89 High Street, Kew Victoria 3108 Australia.
- OVERVIEW OF SERVICES.
The Services provided by WebcoLMS include (a) the LMS Services and (b) digital marketing services, as well as additional content or features that WebcoLMS makes available from time to time.
- ACCESS RIGHTS.
- LMS Services. Subject to Customer’s compliance with the terms and conditions set forth herein, WebcoLMS hereby grants to Customer a non-exclusive, non-assignable, limited right to access and use the LMS Services solely for Customer’s internal business operations, and up to the maximum number of Customer’s Authorised Users set forth in the applicable Order or Customer’s account, during the term of the applicable Subscription (as defined in Section 7.3). Customer may elect to use free trial or paid features, including a Subscription. If you purchase a Subscription, WebcoLMS will use commercially reasonable efforts to provide access to the Services in accordance with the Service Level Agreement available at www.webcolms.com/sla.
- Registration. Customer must register for an account to access portions of the Services. The Customer agrees that the information provided for purposes of account registration is accurate and will be kept accurate and up-to-date at all times. The Customer is solely responsible for maintaining the confidentiality of the Customer’s account and password and accepts responsibility for all activities that occur under the account. Customer will not share passwords, authentication credentials, or other means of account access with a third party, except Authorised Users. If Customer has reason to believe that Customer’s account is no longer secure, Customer must immediately notify WebcoLMS at emergency at webcolms.com.
- User Subscriptions. The maximum number of current Authorised Users the Customer may authorise to access and use the Services at any given time shall not exceed the maximum number of user subscriptions Customer has purchased under the Order or elected plan (unless explicitly defined otherwise under Customer elected plan). Each user subscription shall correspond to a unique Authorised User who will subscribe, access and use the Services by use of password-protected access to the Portal. Each Authorised User is responsible for maintaining the security of that Authorised Users’ account and password. A single login shared by multiple Authorised Users is not permitted. Customer shall maintain an up-to-date list of current Authorised Users and, upon 10 days written notice, permit WebcoLMS or its duly Authorised representative to audit Customer’s records which relate to the measurement of the number of Authorised Users and user subscriptions, provided that such audits may not be conducted more than once during any consecutive 12 month period. Any Authorised person performing such audit shall protect the Customer’s Confidential Information (as defined herein) and abide by the Customer’s reasonable security procedures. Customer shall use all reasonable endeavours to prevent any unAuthorised access to, or use of, the Services and/or the Documentation.
- Customer Delivered Courses. Customer may elect to charge Authorised Users to access a Customer Delivered Course. Customer is solely responsible for, and WebcoLMS has no responsibility of any kind with respect to (a) administration and operation of each Customer Delivered Course, (b) support of Authorised Users with respect to participation in a Customer Delivered Course, (c) ensuring that Customer Delivered Courses do not violate or infringe the intellectual property rights of a third party; and (d) ensuring that Customer Delivered Courses are not offensive, profane, obscene, libellous or otherwise illegal.
- Agreements. Customer must include a separate end user license agreement (“EULA”) that will govern the relationship between Customer and Authorised Users and such Authorised Users’ access to the Services, including Customer Delivered Courses. The applicable EULA is solely between the Customer and the Authorised User. WebcoLMS shall not be responsible, nor have any liability whatsoever, under any EULA. The EULA must include legally enforceable provisions that obtain all necessary licenses, rights, consents, and permissions from each Authorised User, and comply with the terms, restrictions and conditions in this Agreement and all applicable laws, rules and regulations.
- CUSTOMER’S OBLIGATIONS.
Customer agrees to: (a) provide reasonable information and assistance to WebcoLMS to enable the Services to be rendered; (b) comply with all applicable local, state, provincial, national, federal and foreign laws in connections with its use of the Services; (c) notify WebcoLMS immediately upon becoming aware of any unAuthorised use of the Services; (d) designate a qualified employee as Customer’s administrator for the Services; (e) collect, input, update all Authorised Users data and material provided for use in connection with the Services and (f) if on a free version account, not to maintain -either directly or indirectly- more than one account.
- PAYMENT FOR SERVICES.
Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Fees can be in 3 different currencies. Australian Dollars, U.S Dollars or Sri Lankan Rupees and, unless explicitly provided otherwise herein, are non-refundable.
- Price. WebcoLMS reserves the right to determine pricing for the Services. WebcoLMS will make reasonable efforts to keep pricing information published on the website up to date, available at /prices. We encourage you to check our website periodically for current pricing information. WebcoLMS may change the fees for any feature of the Services, including additional fees or charges if WebcoLMS gives you advance notice of changes before they apply. WebcoLMS, at its sole discretion, may make promotional offers with different features and different pricing to any of WebcoLMS’ customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement. The fees set forth in the applicable Order or ordering interface are exclusive of all federal, state, municipal, or other government excise, sales, use, value added or other taxes now in force or enacted in the future, and Customer shall pay any such tax (excluding taxes on WebcoLMS’ net income) that WebcoLMS may be required to collect or pay now or at any time in the future with respect to such fees. Unless otherwise set forth in the Order, Customer shall pay all WebcoLMS’ undisputed invoices within 2 days after Customer receives an invoice. Payment of the amounts due to WebcoLMS shall be made in accordance with the payment schedule set forth on the Order or other ordering interface.
- Authorisation. You Authorise WebcoLMS or a third party payment processor to charge all sums for the Orders you enter into, orders that you make and any level of Services you select as described in this Agreement or published by WebcoLMS, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, a third party payment processor may seek pre-Authorisation of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Subscription Services. The paid Services may include automatically recurring payments for periodic charges (“Subscription”). The price, term, and restrictions of any Subscription will be set forth in an applicable Order. If you activate a Subscription, you Authorise WebcoLMS to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first Subscription. For information on the “Subscription Fee,” please see our /prices page. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next Subscription period. The Subscription will continue unless and until you cancel your Subscription or we terminate it. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription via your Portal (under Account and Settings) or by contacting us at help at WebcoLMS.com. You will not be eligible for any refund unless agreed by the WebcoLMS administration. These enquires should send to [email protected]
- Delinquent Accounts. WebcoLMS may suspend or terminate access to the Services, including fee-based portions of the Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
- PAYMENTS TO CUSTOMER.
If you offer third parties or Authorised Users a Customer Course, as applicable, in exchange for a fee, then you may receive the fees charged less certain fees and expenses (your “CustomerFees”) using WebcoLMS’s third-party service provider (e.g., Stripe). You may select the fee, as well as the bundling of materials in exchange for a discount, if WebcoLMS makes such option available. You may be required to have an account with that third-party service provider or with another financial institution in order to receive your Customer Fees, and you may be charged fees for any related processing services. Any fees charged by WebcoLMS’s third-party service provider or by any other financial institution are between you and that provider or institution and may be subject to their terms and conditions or any agreement you have with them. WebcoLMS may place limits on the balance of Customer Fees you need in order to cash out and on the amount of Customer Fees you may cash out in any given day or transaction, and WebcoLMS may update these limits from time to time at its discretion. In no event may Customer cash out more than $1,000 per day.
- TERM AND TERMINATION.
- Term of Agreement. The term of this Agreement will commence on the Effective Date and will continue in effect unless terminated in accordance with this Agreement (the “Term”). On the effective date of termination of this Agreement, all then-current Subscriptions under the Agreement will also terminate unless otherwise agreed by WebcoLMS and Customer.
- Termination for Cause. Either party shall have the right at any time, by giving notice, to terminate this Agreement without liability to the other on the occurrence of any of the following events: (a) if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within thirty (30) days after receipt of notice to rectify served on the defaulting party by the other party; (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt; or (c) if the other party engages in illegal activities.
- Termination for Convenience. Customer may terminate this Agreement any time without cause upon 30 days’ prior written notice to WebcoLMS, in which case any active Subscription will be deemed terminated as well. The Customer acknowledges that should Customer terminate for convenience, any pre-paid fees to WebcoLMS corresponding to the unused Subscription term are non-refundable.
- Effect of Inactivity. If the Customer has a Trail version account, and does not upgrade to a paid subscription plan, that account will be permanently deleted. Upon such account deletion, all Customer Content will become inaccessible and may be permanently deleted.
- Effect of Termination. Upon termination of these this Agreement: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be Authorised to access your account or the Services; (c) you must pay WebcoLMS any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 1, 5, 7, 9.5, 9.6, 10, 13, 15, 16.3, 17, 18, 19, 20, and 21 will survive.
- Modification of the Services. WebcoLMS reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. WebcoLMS will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.
- OWNERSHIP OF INTELLECTUAL PROPERTY.
WebcoLMS and its licensors retain all intellectual property rights in and to the Services and its components, including the source code, Documentation, Portals, URLs, appearance, structure, organization, preparatory design material, and all other elements of the Services (“Materials”). All Materials in the Services are the property of WebcoLMS or its third-party licensors. Other than the right to use the Services for the Term provided in this Agreement, nothing in this Agreement grants Customer any right in the Services. WebcoLMS reserves all rights to the Materials not granted expressly in this Agreement. To the extent Customer provides WebcoLMS with any feedback relating to the Services (including feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), WebcoLMS will own all right, title and interest in and to such Feedback (and Customer hereby makes all assignments necessary to achieve such ownership). Customer shall report promptly to WebcoLMS any third-party claim served on Customer relating to the intellectual property rights in the Services or the Documentation.
- THIRD-PARTY TERMS.
- Third-Party Services and Linked Websites. WebcoLMS may provide tools through the Services that enable you to export information, including Customer Content, to third-party services , including through features that allow you to link your account on WebcoLMS with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that WebcoLMS may transfer that information to the applicable third-party service. Third-party services are not under WebcoLMS’ control, and, to the fullest extent permitted by law, WebcoLMS is not responsible for any third-party service’s use of your exported information. The Services may also contain links to third-party websites. Linked websites are not under WebcoLMS’ control, and WebcoLMS is not responsible for their content.
- Third-Party Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
- CUSTOMER CONTENT
- Customer Content Generally. Certain features of the Services may permit users to upload courses and other content to the Services, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“Customer Content”) and to publish Customer Content on the Services. You retain any copyright and other proprietary rights that you may hold in the Customer Content that you post to the Services.
- Limited License Grant to WebcoLMS. By providing Customer Content to or via the Services, you grant WebcoLMS a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Customer Content, in whole or in part, for providing the Services as described in this Agreement.
- Limited License Grant to Other Customers. By providing Customer Content to or via the Services to other users of the Services, you grant those users a non-exclusive license to access and use that Customer Content as permitted by this Agreement and the functionality of the Services.
- Customer Content Representations and Warranties. WebcoLMS disclaims any and all liability in connection with Customer Content. You are solely responsible for your Customer Content and the consequences of providing Customer Content via the Services. By providing Customer Content via the Services, you affirm, represent, and warrant to us that:
- you are the creator and owner of the Customer Content, or have the necessary licenses, rights, consents, and permissions to Authorise WebcoLMS and users of the Services to use and distribute your Customer Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by WebcoLMS, the Services, and this Agreement;
- your Customer Content, and the use of your Customer Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including intellectual property rights; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause WebcoLMS to violate any law or regulation; and
- your Customer Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
- You have all necessary approvals and Authorisations to convey all licenses to WebcoLMS hereunder
- Customer Content Disclaimer. We are under no obligation to edit or control Customer Content that you or other users post or publish, and will not be in any way responsible or liable for Customer Content. WebcoLMS may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Services you will be exposed to Customer Content from a variety of sources and acknowledge that Customer Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against WebcoLMS with respect to Customer Content. If notified by a user or content owner that Customer Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the Customer Content, which we reserve the right to do at any time and without notice. For clarity, WebcoLMS does not permit copyright-infringing activities on the Services.
- Monitoring Content. WebcoLMS does not control and does not have any obligation to monitor: (a) Customer Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that WebcoLMS reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational purposes. If at any time WebcoLMS chooses to monitor the content, WebcoLMS still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content.
- COPYRIGHT AND INTELLECTUAL PROPERTY PROTECTION
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Services, you may contact us at [email protected]
- Content of Notification. Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person Authorised to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not Authorised by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or Authorised to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. WebcoLMS will promptly terminate the accounts of users that are determined by WebcoLMS to be repeat infringers.
- CUSTOMER’S DATA.
- Customer hereby acknowledges and agrees that WebcoLMS’ performance of this Agreement requires WebcoLMS to process, transmit and store personal data under the documented instructions of the Customer which form an integral part to this Agreement.
- WebcoLMS shall process information and personal data under this paragraph for the Term of the Agreement and until collection of payments, unless processing after the Term is necessary for compliance with a legal obligation or for the establishment, exercise or defense of legal claims.
- Customer hereby acknowledges and agrees that WebcoLMS shall process the name and email address of the Customer to communicate with the Customer for the presentation and promotion of the Services or of new services. Customer may at any time, free of charge, unsubscribe from such electronic communication, easily by clicking the button “unsubscribe” contained in the electronic communication.
- CONFIDENTIAL INFORMATION.
During the Term, in connection with this Agreement, each party (a “DisclosingParty”) may disclose to the other party (a “ReceivingParty”) confidential or proprietary materials and information of the first party (“ConfidentialInformation”). All materials and information disclosed by Disclosing Party to Receiving Party under this Agreement and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the Receiving Party reasonably should have known was the confidential information of the Disclosing Party, will be considered “Confidential Information”; for the avoidance of doubt, the Services, all pricing information and terms of this Agreement, are Confidential Information of WebcoLMS. Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated under this Agreement. The obligations in this Section 15 will not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (c) is disclosed to Receiving Party by a third-party without restriction, or (d) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including all copies and extracts thereof. Notwithstanding the foregoing, (i) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement and (ii) all Feedback be solely, as between the parties, Confidential Information of WebcoLMS.
- LIMITED WARRANTY AND DISCLAIMER
- Each party warrants that: (a) it is a validly existing and duly incorporated company in accordance with respective local laws; (b) it has full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its the terms of this Agreement; and (c) it has taken all necessary corporate action to Authorise the creation, execution, delivery and performance of this Agreement, and to observe and perform the provisions of this Agreement in accordance with their terms.
- WebcoLMS further warrants that during throughout the Term, when utilized in accordance with their current Documentation and under normal use and circumstances, the Services will operate in material conformance with the Documentation under normal use and circumstances.
- Except as set forth in THIS SECTION 16, WebcoLMS makes no representations or warranties or conditions of any kind concerning the Services, the MATERIALS, or their use, accuracy, or function. Specifically, WebcoLMS PROVIDES THE SERVICES ON AN “AS-IS” BASIS AND “AS-AVAILABLE BASIS” AND disclaims all warranties, express, implied, or statutory, regarding the Services, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the Services shall be deemed a warranty or guarantee for any purpose or give rise to any WebcoLMS’ liability of third parties whatsoever. Customer acknowledges that it relied on no warranties or statements other than as may be set forth herein. WebcoLMS DOES NOT WARRANT THAT THE services or CONTENT OFFERED THROUGH THE services, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WebcoLMS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING FEES CHARGED TO Authorised USERS, AND WebcoLMS WILL NOT BE LIABLE FOR ANY DISCREPANCY BETWEEN FEES CHARGED TO Authorised USERS AND FEES CUSTOMER OWES TO WebcoLMS. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 16.3 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. WebcoLMS does not disclaim any warranty or other right that WebcoLMS is prohibited from disclaiming under applicable law.
- LIMITATION OF LIABILITY
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WebcoLMS AND ITS AFFILIATES BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER’S ACCESS TO OR USE OF, OR CUSTOMER’S INABILITY TO ACCESS OR USE, THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY WebcoLMS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE WebcoLMS ENTITIES TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT CUSTOMER HAS PAID TO WebcoLMS FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
- EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Customer will defend, indemnify, and hold WebcoLMS harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with: (a) Customer’s breach of any laws or regulations (including with respect to privacy); (b) Customer’s or any Authorised User’s use of the services; and (c) Customer’s violation of any agreements it has with any Authorised User.
WebcoLMS reserves the right to change this Agreement on a going-forward basis at any time upon seven days’ notice. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies Customer’s rights or obligations, WebcoLMS may require that Customer accept the modified Agreement in order to continue to use the Services. Customer must accept the modifications to continue accessing or using the Services. If Customer objects to the modifications, its exclusive remedy is to cease any and all access and use of the Services. If the effective date of the modifications is during the term of a Subscription and Customer objects to the modifications, then (as its exclusive remedy) Customer may terminate its affected Subscription upon notice to WebcoLMS, and WebcoLMS will refund to Customer any fees it has pre-paid for use of the Services for the terminated portion of the term of the applicable Subscription. To exercise this right, Customer must provide WebcoLMS with notice of its objection and termination within 30 days after WebcoLMS provides notice of the modifications. Material modifications are effective upon Customer’s acceptance of the modified version of the Agreement. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 19, this Agreement may be amended only by a written agreement signed by Authorised representatives of the parties to this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
- SANCTIONS & EXPORT CONTROLS.
You acknowledge that the Services may be subject to Australian. and international export control laws and regulations. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the Australian Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. You agree not to—directly or indirectly—sell, export, reexport, transfer, or divert the service provided by WebcoLMS to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior Authorisation from the competent government authorities as required by those laws and regulations. Additionally, you warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria or the Crimea Region of the Ukraine, and (2) not a denied party as specified in the regulations listed above. This export control clause shall survive termination or cancellation of this Agreement.
- Notices. Any notice, request, instruction or other document to be given under this Agreement to any party hereunder shall be in the English language, in writing, and sent by first class mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the Customer’s account or, to WebcoLMS at 315 Montgomery Str, 9th Floor San Francisco, CA 94104 – USA (or such other address as may be properly specified by written notice hereunder). Email notice will be permitted by WebcoLMS if sent to the Customer’s account email address.
- Entire Agreement. The Agreement, including the Course Store Terms and any applicable Order or DPA, constitutes the entire Agreement and contains the entire and exclusive understanding between the parties with respect to the matters referenced herein. No terms other than those expressly set out herein are deemed to be implied herein. No amendment or modification of this Agreement shall be valid and binding unless made and confirmed in writing or otherwise signed by the parties hereto.
- Severability. In the event of any one or more provisions of this Agreement becoming invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Waiver. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
- Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including accident, acts of God, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay. Notwithstanding any other provisions of this section, should the Force Majeure Event last for more than 30 days, the non-affected party may terminate this Agreement immediately upon written notice to the affected party.
- Marketing. During the Term: (a) Customer agrees to participate in case studies and other similar marketing efforts reasonably requested by WebcoLMS; (b) WebcoLMS may disclose that Customer is a customer of WebcoLMS to third parties; and (c) WebcoLMS may include on and in WebcoLMS’ website, case studies, marketing materials, and conference presentations and other speaking opportunities, Customer’s testimonials and other feedback regarding the Services, name, website URL, use case, and logo and other marks. Upon request from Customer, WebcoLMS will promptly stop making the disclosure and use described in the foregoing sentence except to the extent already included in any then-existing materials.
- Assignment. This Agreement is not assignable or transferable by Customer except with WebcoLMS’ prior written consent; provided, however, that Customer may, upon prior written notice to WebcoLMS, transfer and assign its rights and obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. If such a transfer or assignment is made in favor of a direct competitor of WebcoLMS, then WebcoLMS may terminate this Agreement upon written notice to Customer. WebcoLMS may freely assign this Agreement. Any assignment in violation of the foregoing is void.
- Governing law, Jurisdiction. Any dispute arising hereunder shall be exclusively construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this Agreement, Customer consents to the personal jurisdiction and venue of the courts located in the State of Delaware, without prejudice to the provisions of the DPA.