The following terms and conditions (“Terms of Service”) apply to the Services to be delivered by Learning Tree International, Inc., a Delaware corporation (“Learning Tree”) on its own behalf and on behalf of its Affiliates (collectively, “Learning Tree Group”), to the customer ordering the Services or identified in the Service Order (“Customer” or “you”).
PLEASE CAREFULLY READ THESE TERMS. BY (AS APPLICABLE) SIGNING A SERVICE ORDER THAT REFERENCES THESE TERMS OF SERVICE, CLICKING “ACCEPT” AND/OR ACCESSING OR USING OUR SERVICES, YOU CONFIRM THAT YOU HAVE READ, ACCEPT AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THIS AGREEMENT.
The Services are exclusively reserved for a professional use and are not available to minors under the age of 18.
1. DEFINED TERMS
The following words, when capitalized, have the meaning stated:
“Affiliate” means any entity that is owned or that owns a party, or that is under its common control.
“Agreement” means, collectively, the Service Order, these Terms of Service, and each of the other documents referenced in these Terms of Service.
“Confidential Information” means non-public data, information or other materials disclosed by one party (“disclosing party”) to the other (“receiving party”) in any form that (i) is designated as “Confidential”; or (ii) is what a reasonable person knows or reasonably should understand to be confidential; or (iii) includes the disclosing party’s products, services, materials, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement or Courseware; and which (a) is not independently developed by the other party without use of or access or reference to the disclosing party’s Confidential Information, (b) becomes publicly available without fault of the receiving party, (c) is rightfully obtained by the receiving party from a third party without restriction to disclosure, or (d) is otherwise known to the receiving party on a non-confidential basis prior to disclosure by the disclosing party.
“Courseware” means all materials (whether in print, digital or other format) including software provided or granted access by Learning Tree or Learning Tree Group as part of the Services for your internal use as necessary for you to enjoy the benefit of the Services and all Intellectual Property therein or appurtenant thereto.
“Deliverables” means the tangible or intangible materials which are specifically prepared for your use in the course of performing the Services and that are specifically identified in a Service Order as Deliverables and described therein. Courseware is not a Deliverable and if no Deliverables are specifically identified in a Service Order, then there are no Deliverables for such Service Order.
“Intellectual Property” means all rights in, to and under any patents, copyrights, trademarks, trade secrets, software and source code, specifications and ancillary documentation and any other proprietary intellectual property rights.
“Personal Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person, (ii) trade secrets, (iii) financial records (iv) other sensitive, regulated, or confidential information.
“Representatives” means a party’s authorized respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, agents.
“Services” means the services identified in a specific Service Order. Services which are provided on an on-going basis over a defined term are referred to as “Recurring Service” and Services which are provided on a one-off basis are referred to as “One Time Services”.
“Service Order” means the document which describes the Services you are purchasing, including any online order, process, or tool through which you request or provision Services.
2.1 General. Subject to your compliance with this Agreement, Learning Tree will use commercially reasonable efforts to provide the Services in accordance with the Agreement and all applicable laws.
2.2 Delivery. Learning Tree may, in its discretion, change delivery location, method, and date if circumstances outside of Learning Tree’s control makes it not commercially reasonable to deliver such Services. Learning Tree will provide the Customer with as much advance notice as possible of any changes to delivery. Certain Services are offered on a space-available basis.
2.3 General Disclaimers. Learning Tree makes no commitment to provide any services to Customer other than the Services specifically stated in the applicable Service Order. Learning Tree is not responsible to you or any third party for unauthorized use of the Services. Except as expressly set forth in this Agreement, the Services are provided on an “as is” basis and Learning Tree and its Representatives disclaim any and all warranties, express, implied, by statute or otherwise, not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Learning Tree expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation. Similarly, Learning Tree may, at any time, discontinue providing Courseware, in whole or in part, deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, Learning Tree will endeavor to inform you as early as possible. Learning Tree does not warrant that the Services will be uninterrupted for any reason (including interruptions caused by malicious interference by unauthorized personnel), error-free or without delay and shall not be liable for delays, errors, omissions, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Learning Tree or that may arise during use of the Services. Customer acknowledges that the Services do not constitute any form of opinion or advice or compliance with laws or regulatory requirements, and that the use of the Services is not the provision of any advice.
3. CUSTOMER OBLIGATIONS
3.1 Generally. You are responsible for keeping your account permissions, billing, and other account information up to date and secure. You agree that you are solely responsible for determining the suitability of the Services and your compliance with any applicable laws, including export laws and data privacy laws. You also agree to ensure that your own users comply with this Agreement. You shall not: modify, make derivative works, alter or permit a third party to modify, make derivative works or alter, any part of the Services, including the Courseware; copy or permit a third party to copy the Services or Courseware, in part or in whole; reverse engineer, de-compile, disassemble or otherwise attempt to derive or gain access to the source code of the Services or other proprietary information from the Services; sell, transfer or lease the Services to a third party, except as permitted under this Agreement; or access or use the Services beyond the scope of the authorization granted under this Agreement.
3.2 Documentation. You agree to comply with the Learning Tree Group documentation found on the respective website and agree that Learning Tree may establish new procedures, methods, locations and timing for your use of the Services as it deems necessary for the optimal performance of the Services.
3.3 Suspension of Services. Learning Tree may suspend the Services without liability if: (i) Learning Tree reasonably believes that the Services are being used in violation of this Agreement, applicable law, industry policies and practices, or otherwise in a manner deemed to be harmful to the Services; (ii) you fail to adhere to terms and conditions governing the Services; (iii) you don’t cooperate with our reasonable investigation of any suspected violation of this Agreement; (iv) there is an attack on the Services or your Services are accessed or manipulated by a third party without your consent; (v) Learning Tree is required by law or by a regulatory or government body to suspend the Services; (vi) there is another event for which Learning Tree reasonably believes that the suspension of the Services is necessary to protect the Learning Tree network or our other customers; or (vii) this Agreement expires or is terminated.
4.1 Generally. Learning Tree will not use or disclose Personal Data except as required to perform the Services or as required by law. Learning Tree shall provide the Services in accordance with the privacy practices set forth at:
United States: https://www.learningtree.com/contact-us/privacy/
United Kingdom: https://www.learningtree.co.uk/contact-us/privacy/
4.2 Each party will at all times, collect, store or otherwise process personal data in accordance with applicable laws relating to the use of personal data relating to individuals, including without limitation any laws relating to individual rights and cross-border transfers. Each party will use reasonable efforts to assist one another in relation to the investigation and remedy of any investigation, claim, allegation, action, suit, proceeding or litigation with respect to an alleged breach of data privacy laws in relation to activities under the agreement. Each party will maintain, and will require any third party data processors to maintain, appropriate physical, technical and organizational measures to protect the personal data. You may not use personal data included in the Services (to the extent such data was not provided by you or collected by Learning Tree on your behalf) to send bulk or mass emails or email blasts; to publish or distribute any advertising or promotional material; or to otherwise use such personal data in a manner that is prohibited by applicable law. You acknowledge that you are responsible for your own compliance with data privacy laws, including, where applicable, determining your legal grounds for processing such personal data. If we process personal data as a processor on your behalf, a data processing addendum will be entered into separately. ‘Data controller’, ‘personal data’ and ‘process’ will have the meaning given in the applicable data privacy laws or the data processing addendum.
4.3 Data Transmission. You acknowledge and understand that the Services may include the transmission of unencrypted email in plain text over the public internet.
5. INTELLECTUAL PROPERTY
5.1 Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If you provide Learning Tree with your pre-existing Intellectual Property (“Customer IP”), then you hereby grant to Learning Tree, during the term of the applicable Service Order, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. You represent and warrant that you have all rights in the Customer IP necessary to grant this license, and that Learning Tree’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third party.
5.2 Created by Learning Tree. Unless otherwise specifically stated in the applicable Service Order, and excluding any Customer IP, Learning Tree shall own all Intellectual Property created as part of providing the Services or contained in the Deliverables. Unless otherwise specifically stated in the Agreement, and subject to your payment in full for the applicable Services, Learning Tree grants to you a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use any Deliverables, and during the term of the Service Order any Intellectual Property (excluding any Third Party Services and any Open Source Software), provided to you by Learning Tree as part of the Services solely for your internal use as necessary for you to enjoy the benefit of the Services.
5.3 Open Source. In the event Learning Tree distributes any open source software to you as part of the Services (for example Linux, and software licensed under the Apache, Adobe or other open source licenses, collectively “Open Source Software”) then such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict with these Terms of Service, the terms of the applicable open source license shall control.
5.4 Third Party Software and Courseware. Learning Tree may provide third party software and Courseware for your use as part of the Services or to assist in our delivery of the Services (“Third Party Services”). Unless otherwise permitted by the terms of the applicable license you may not (i) assign, grant or transfer any interest in the Third Party Services to another individual or entity, (ii) reverse engineer, decompile, copy or modify the Third Party Services, (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Services, or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing this Agreement. You may only use Third Party Services provided for your use as part of the Services (identified on the Service Order), subject to any additional restrictions identified in this Agreement. You are prohibited from using Third Party Services which Learning Tree installs in order to assist our delivery of the Services. Upon termination of the Service Order, you will permit removal of the Third Party Services. Learning Tree makes no representation or warranty regarding Third Party Services except that Learning Tree has the right to use or provide the Third Party Services and that Learning Tree is in material compliance with the applicable license.
5.4 Infringement. If the delivery of the Services infringes the intellectual property rights of a third party and Learning Tree determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverable such that they do not infringe, then Learning Tree may terminate the Service Order on ninety days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of Deliverables deemed infringing).
6.1 Fees. You agree to pay the fees for the Services based on the rates and charges set forth in your Service Order, as applicable. From time to time, Learning Tree may impose additional fees on certain Services provided to you, which such additional fees shall in each case be communicated to you through an update to your Service Order, as applicable. Fees paid for Services are non-cancelable and non-refundable. Fees are due within ten days from the invoice date. If you have arranged for payment by credit card, Learning Tree may charge your card or account on or after the invoice date. If your undisputed payment is overdue for more than five days, Learning Tree may suspend the Services and any other services you receive from Learning Tree on written notice and accelerate your unpaid fees so that all such obligations become immediately due and payable, in addition to other rights and remedies. Learning Tree shall undertake collection efforts prior to any suspension. Invoices that are not disputed within one hundred and twenty days of the invoice date are conclusively deemed accurate. Fees must be paid in the currency identified in your Service Order, as applicable. You are solely responsible for all wire transfer and other bank fees associated with the delivery of payments to Learning Tree. Learning Tree may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge you for any cost or expense arising out of our collection efforts.
6.2 Fee Increases. Learning Tree may revise the pricing terms that apply to your use of the Services at any time by providing you with notice pursuant to Section 11 of these Terms of Service. With respect to Customers that are party to a then-effective Service Order, the revised rates, charges and fees assessed to you for Services under such Service Order will not become effective until the commencement of the next renewal term of such Service Order and in any event may not increase by more than five percent (5%) (as compared to the rates and charges in effect for the immediately preceding term) effective upon the commencement of each renewal term (and the Service Order will be deemed amended to reflect such increased rates and charges). If at any time during either an initial or renewal term of a Service Order a third party license provider directly or indirectly increases the fee they charge Learning Tree for your use of Third Party Services, Learning Tree may increase your fees by the same percentage amount on sixty (60) days’ advance written notice.
6.3 Taxes. All amounts due to Learning Tree under the Agreement are exclusive of any value added, goods and services, sales, use, and like taxes, (collectively, “Tax”). You must pay Learning Tree the Tax that is due or provide Learning Tree with satisfactory evidence of your exemption from the Tax in advance of invoicing. You must provide Learning Tree with accurate and adequate documentation sufficient to permit Learning Tree determine if any Tax is due. All payments to Learning Tree shall be made without any withholding or deduction for any taxes except for withholding (or similar) taxes imposed on income that may be attributable to Learning Tree in connection with its provision of the Services that you are legally required to withhold and remit to the applicable governmental or taxing authority (“Local Withholding Taxes”). You agree to timely provide Learning Tree with accurate factual information and documentation of your payment of any such Local Withholding Taxes. Learning Tree shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.
7. TERM & TERMINATION
7.1 Term. The Agreement shall continue after the initial Service start date until terminated in accordance with its terms or the termination of the final Service Order, whichever is the later. Unless otherwise stated in the applicable Service Order, each Service Order’s initial term and shall automatically renew on initial term expiry on a rolling twelve (12) month basis unless either party provides the other with written notice of non-renewal at least forty-five days prior to the expiration of the then current term.
7.2 Termination for Cause. Either party may terminate the Agreement or the affected Service Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within thirty (30) days of the non-breaching party’s written notice describing the breach.
7.2.1 If, following suspension of your Services for non-payment, your payment of any invoiced undisputed amount remains overdue for a further ten (10) days, Learning Tree may terminate the Agreement or the applicable Service Order(s) for breach on written notice.
7.2.2 Either party may terminate the Agreement and the Service Order(s) on written notice if the other enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts. Notwithstanding anything to the contrary in the Agreement, the fees for the Services shall become due immediately on such an occurrence.
7.2.3 Upon any termination of this Agreement for any reason: the license granted herein will immediately terminate and all rights granted herein will automatically revert to Learning Tree; you shall immediately cease any and all use of and access to the Services, delete (or, at Learning Tree’s request, return) any and all copies of Courseware and Deliverables, any passwords, access codes or login credentials and any other Learning Tree Confidential Information in your possession; and you shall immediately pay all amounts due Learning Tree pursuant to this Agreement.
8. CONFIDENTIAL INFORMATION
8.1 Generally. Each receiving party agrees not to use the disclosing party’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect the disclosing party’s Confidential Information from unauthorized disclosure. Each receiving party agrees not to disclose the disclosing party’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
8.2 Usage Data. Learning Tree collects and stores data and information related to your use of the Services, such as use of the Learning Tree website. Learning Tree may use this data and information for our general business purposes and any other legal purpose and may disclose the data and information to third parties in aggregate statistical form, provided that Learning Tree does not include any information that could be used to identify you.
9. LIMITATIONS ON DAMAGES
9.1 Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from death or personal injury caused by recklessness, willful misconduct, fraudulent misrepresentation or any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of Learning Tree and any of its Representatives for direct damages in connection with the Services or the Agreement under any theory of law shall not exceed the total amount paid for the Services that are the subject of the claim in the twelve months immediately preceding the event(s) that gave rise to the claim.
9.2 Indirect Damages. Except for a receiving party’s breach of its confidentiality obligations, neither party (nor any of our respective Affiliates or Representatives) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. Neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill or reputation.
9.3 Service Credits. A credit for Service(s) not delivered or made available is your sole and exclusive remedy for Learning Tree’s material failure to perform its obligations under Section 2 of these Terms of Service. The maximum total credit(s) shall not exceed one hundred percent of the applicable fee for such Service(s). You are not entitled to a credit if you are in breach of the Agreement at the time of the occurrence of the event giving rise to the credit until you have remedied the breach. No credit will be due if the credit would not have accrued but for your action or omission.
10.1 If Learning Tree, its Affiliates, or any of its or their Representatives (the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or alleged: recklessness, willful misconduct, breach of applicable law, failure to meet the obligations required by the Agreement or breach of your agreement with your customers or end users, then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Courseware or Third Party Services, and any person who gains access to the Courseware or Third Party Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.
10.2 Learning Tree will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. Learning Tree may not settle the claim without your consent, which may not be unreasonably withheld, delayed or conditioned. You must pay costs and expenses due under this Section as Learning Tree incurs them.
Your routine communications to Learning Tree regarding the Services should be sent to Learning Tree’s customer care team. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, you must send it by electronic mail and first-class post to: Learning Tree International, Inc., Contracts Department contracts@LearningTree.com, 13650 Dulles Technology Drive, Suite 400, Herndon, Virginia 20171-6156
Learning Tree’s routine communications regarding the Services and legal notices will be sent by email to the individual(s) you designate as your contact(s) on your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall on a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.
12. PUBLICITY, USE OF MARKS
Unless otherwise agreed in the Service Order, you agree that Learning Tree may publicly disclose that it is providing Services to you and may use your name and logo to identify you in promotional materials, including press releases. You may not issue any press release or publicity regarding the Agreement, use the Learning Tree name or logo or other identifying indicia, or publicly disclose that it is using the Services without Learning Tree’s prior written consent.
Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. Learning Tree may use its Affiliates or subcontractors to perform all or any part of the Services, but Learning Tree remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Learning Tree performed the Services itself.
14. FORCE MAJEURE
Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an extraordinary event beyond its control, such as significant failure of a part of the power grid, Internet failure, natural disaster, war, riot, epidemic, strikes or labor action, terrorism (“Force Majeure”).
If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. Notwithstanding the foregoing, in no event shall a Force Majeure event excuse or delay a party’s obligation(s) with respect to confidentiality or Intellectual Property rights or payment of any amount due or owning.
15. GOVERNING LAW
15.1 The Agreement shall be governed by the laws of the Commonwealth of Virginia, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, including the Federal Arbitration Act, 9 U.S.C. §1, et seq. You acknowledge and agree to the exclusive jurisdiction of the courts located in Fairfax County in the Commonwealth of Virginia. Any dispute or claim relating to or arising out of the Agreement, other than seeking immediate injunctive relief, shall be submitted to binding arbitration. The arbitration shall be conducted in the state and county (or equivalent geographic location) of the non-asserting party’s principal business offices in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time the dispute or claim arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce an arbitration award. Neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Either party shall be permitted to appeal the final award under the AAA’s Optional Appellate Arbitration Rules in effect at the time the dispute or claim arose. Grounds for vacating the award shall include, in addition to those enumerated under the Federal Arbitration Act, that the arbitrator committed errors of law that are material and prejudicial. The appeal shall be determined upon the written documents submitted by the parties, with no oral argument. After the appellate rights described herein have been exercised or waived, the parties shall have no further right to challenge the award.
15.2 Notwithstanding the exclusive jurisdiction provision above, you agree that Learning Tree may seek to enforce any judgment anywhere in the world where you may have assets. No claim may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that Learning Tree will not bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
15.3 The prevailing party in any action or proceeding relating to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
15.4 The parties hereby agree to waive their respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement. The parties each acknowledge that the foregoing waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings. Each party further warrants and represents that each has had the opportunity to have legal counsel review the waiver. The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver will apply to any subsequent amendments, renewals, supplements or modifications to this Agreement.
16.1 Some terms are incorporated into the Agreement by reference to pages on the Learning Tree website and Learning Tree may revise those terms from time to time (including these Terms of Service). Such revisions will be effective and supersede and form part of the Agreement as of the time (i) you enter into a new Service Order referencing the terms subject to the revisions or (ii) a Service Order automatically renews pursuant to the Agreement in which case you acknowledge that you have reviewed and accept the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: the Service Order, then these Terms of Service. The headings or captions in the Agreement are for convenience only. If over time you enter into multiple Agreements for Services, then the most recent Agreement terms referenced in the Service Order(s) will govern the entirety of the Services.
16.2 Unless otherwise expressly permitted in the Agreement the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove services by a formal written agreement signed by both parties, or by an exchange of correspondence that includes the express consent of an authorized individual for each of us. The pre-printed terms of your purchase order or other business form or terms that you provide shall be void and of no effect.
16.3 If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party.
16.4 The following provisions in these Terms of Service shall survive expiration or termination of the Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, General Disclaimers, Governing Law, Notices, Miscellaneous, all terms of the Agreement requiring you to pay any fees for Services provided prior to the time of expiration or termination, or requiring you to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
16.5 The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.
Last revised 10/29/2021