Master Terms and Conditions

These Terms and Conditions (hereinafter – “Terms” or “Agreement”) set forth the general terms and conditions governing your use of the Services and the Software. These Terms are legally binding between Customer(s) and LearnWise Software International B.V.

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By accessing and using the Software and Services, you acknowledge that you have read, understand, and agree to be bound by these Terms. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind that person to these Terms, in which case the terms “Customer” will refer to that person. If you do not have such authority or do not agree to these Terms, you may not accept these Terms and may not access and use the Software and Services.

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You acknowledge that these Terms are a contract between the customer and LearnWise Software International B.V., even though it is electronic (browsewrap agreement) and not physically signed by you, and that it governs your use of the Software and the Services.

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We encourage you to read these Terms, along with our Privacy Policy, entirely and carefully before using our Services and website.

1. “Customer” shall mean the person who is entering into these Terms on behalf of a company or other legal entity you represent that you have the authority to bind that person to these Terms
2. “Software” shall mean the Services or any software, documentation or data related to the Services.
3. “Services” shall mean the scope of work provided under the provisions of these Terms and Order Form and defined in the Order Form and in these Terms.
4. “Initial Term” shall mean the term of Software and Services usage specified in the Order Form and regulated by the provisions of these Terms.
5. “Order Form” shall mean the common document signed between LearnWise Software International B.V. and the Customer where the parties defined provisions of cooperation.

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Other definitions are defined through the text of these Terms.

• SAAS SERVICES AND SUPPORT
  • Subject to the terms of this Agreement, LearnWise Software International B.V. will use commercially reasonable efforts to provide Customer with the Services in accordance with the Service Level Terms order form hereto as Exhibit A. As part of the registration process, the Customer will identify an administrative username and password for the Customer’s LearnWise Software International B.V. account. LearnWise Software International B.V. reserves the right to refuse registration of or cancel passwords it deems inappropriate.
  • Subject to the terms hereof, LearnWise Software International B.V. will provide Customer with reasonable technical support services in accordance with the terms set forth in Support Terms and Conditions.
    
• ELIGIBILITY
  • By agreeing to these Terms, the Customer represents and warrants to LearnWise Software International B.V.:
    • The Customer’s or Customer representative’s age is at least eighteen (18) years old; all Customers under this age must obtain parental consent to use the Software and Services.
    • If the Customer represents a company, the Customer is an authorised representative and provides a negotiation and/or order with the services on behalf of the company the Customer is representing.
    • That the Customer’s use of the Software complies with applicable laws and regulations.
• LICENSE GRANT TO LEARNWISE SOFTWARE INTERNATIONAL B.V.
  
  1. By providing information, including any commercial data, technical information, and usage data (hereinafter—“Files”), due to the Service providing or via other types of electronic communications, the Customer approves LearnWise Software International B.V.'s processing of the Files.
  2. LearnWise Software International B.V. guarantees that all Files will be used only for data processing purposes by the Service, and any third party will not have any access to the Customer’s Files without the Customer’s additional permission.
  3. The Customer agrees to provide the Software with the necessary access to the Customer’s account and code repositories and entitle the Software to operate on your account and control the Customer’s resources.
  4. The Customer certifies that LearnWise Software International B.V. can request the right to use the Customer’s logo and/or TM for advertising and promoting purposes. LearnWise does not have the right to use the Customer's logo or trademark without the Customer’s prior consent.
• RESTRICTIONS AND RESPONSIBILITIES
  
  1. Customer will not do, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by LearnWise Software International B.V. or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
  2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with LearnWise Software International B.V.’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.
  3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
• CONFIDENTIALITY; PROPRIETARY RIGHTS
  
  1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of LearnWise Software International B.V. includes non-public information regarding the Service's features, functionality and performance. Proprietary Information of Customer includes non-public data provided by Customer to LearnWise Software International B.V. to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
  2. Customer shall own all rights, titles and interests in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. LearnWise Software International B.V. shall own and retain all rights, titles and interests in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
  3. Notwithstanding anything to the contrary, LearnWise Software International B.V. shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and LearnWise Software International B.V. will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other LearnWise Software International B.V. offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein or in the Order Form.
  4. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements or files of the Service and/or Software, materials of Service (hereinafter – “the Materials”) provided by LearnWise Software International B.V. are protected by all relevant intellectual property and proprietary rights and applicable laws.
  5. All Materials contained in the Service are the property of LearnWise Software International B.V.
  6. If the Service and/or Software contains any materials, interfaces, logos, designs, products, or something else that is not the intellectual property of LearnWise Software International B.V. and LearnWise Software International B.V. doesn’t have licenses for using it, the licensor has the right to request to delete its intellectual property from the Service and/or Software according to the procedures defined in the Digital Millennium Copyright Act (hereinafter – “DMCA”) and/or Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC (hereinafter – “EUCD”).
  7. LearnWise Software International B.V. does not claim to be the owner or representative of the trademarks, brands and intellectual properties of other sides and remains the property of the original copyright owners.
  8. Except as expressly authorised in writing by LearnWise Software International B.V., the Customer may not use the Materials.
  9. LearnWise Software International B.V. reserves all rights to the Materials not granted expressly in this Terms.
  10. LearnWise Software International B.V. grants to the Customer for the paid period of using of the Software a royalty-free, non-exclusive licence to use the Intellectual Property solely to the extent necessary to enable the Customer to use the Software in accordance with the terms of this Agreement.
• PAYMENT OF FEES
  
  1. The Customer will pay LearnWise Software International B.V. the applicable fees for the Services and Implementation Services in accordance with the terms described in the Order Form (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage, and Customer agrees to pay the additional fees in the manner provided herein. If Customer believes that LearnWise Software International B.V. has billed Customer incorrectly, Customer must contact LearnWise Software International B.V. no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to LearnWise Software International B.V.’s customer support department. LearnWise Software International B.V. reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or than the current renewal term upon thirty (30) days prior notice to Customer (which may be sent by email) and provided the Customer agrees to those new charges. In the event that the Customer is not willing to agree to the new charges, the Customer shall have the right to terminate the Agreement, such termination to take effect at the end of that year of service.
  2. LearnWise Software International B.V. may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by LearnWise Software International B.V. thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of one point five per cent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all collection expenses and may result in immediate termination of Service. The Customer shall be responsible for all taxes associated with Services other than Dutch taxes based on LearnWise Software International B.V.’s net income.
  3. LearnWise Software International B.V. does not provide any refunds. If the Customer decides to terminate the usage of the Software, the Customer shall use the Software until the end of the prepaid period.
• TERM AND TERMINATION
  
  1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”) unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
  2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
  3. LearnWise Software International B.V. has the right to modify/upgrade or discontinue the Service and/or Software at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to Customer.
  4. LearnWise Software International B.V. does not have any liability whatsoever on account of any change to the Services and/or Software or suspension or termination of Customer’s access to Software and/or Services.
• WARRANTY AND DISCLAIMER
  
  1. LearnWise Software International B.V. shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.
  2. LearnWise Software International B.V. is only responsible for the accuracy of functionality after setting up or any changes with LearnWise Software International B.V.’s assistance. LearnWise Software International B.V. is not responsible for incorrectly setting and using the Service and/or Software due to any damage to the Customer.
  3. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by LearnWise Software International B.V. or by third-party providers, or because of other causes beyond LearnWise Software International B.V.’s reasonable control, but LearnWise Software International B.V. shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
  4. However, LearnWise Software International B.V. does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from the use of the Services. **EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND LearnWise Software International B.V. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
• INDEMNITY
  
  1. LearnWise Software International B.V. shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided LearnWise Software International B.V. is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement; LearnWise Software International B.V. will not be responsible for any settlement it does not approve in writing.
  2. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by LearnWise Software International B.V., (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by LearnWise Software International B.V., (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by LearnWise Software International B.V. to be infringing, LearnWise Software International B.V. may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
  3. The Service and the Software are made available to the Customer on an “as is” and “as available” basis, with the express understanding that LearnWise Software International B.V. has no obligation to monitor, control, or vet the content or data appearing in the Service and/or Software.
  4. The Customer uses the Service and the Software at the Customer’s discretion and risk and takes full responsibility for the Customer’s using the Service and/or Software.
  5. LearnWise Software International B.V. makes no claims or promises about the Service's quality, accuracy, or reliability and expressly disclaims all warranties, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
• LIMITATION OF LIABILITY
  • NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, LearnWise Software International B.V. AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LearnWise Software International B.V.’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LearnWise Software International B.V. FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT LearnWise Software International B.V. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• MISCELLANEOUS
  
  1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
  2. This Agreement is not assignable, transferable or sublicensable by Customer except with LearnWise Software International B.V.’s prior written consent. LearnWise Software International B.V. may transfer and assign any of its rights and obligations under this Agreement without consent.
  3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein.
  4. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind LearnWise Software International B.V. in any respect whatsoever.
  5. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
  6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  7. The laws of the Netherlands shall govern this Agreement without regard to its conflict of laws provisions.
  8. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and the Customer otherwise agrees to reasonably cooperate with LearnWise Software International B.V. to serve as a reference account upon request.
  9. LearnWise Software International B.V. reserves the right to modify these Terms at any time. The revised version of these Terms will be posted on the LearnWise Software International B.V. website. Unless otherwise specified, any modifications to these Terms will take effect the day they are posted on the website.
  10. LearnWise Software International B.V. is not obliged to inform the Customers about changes in these Terms.

Service Level Terms

1. The Services shall be available 99%, measured monthly, excluding holidays and weekends and scheduled maintenance.
2. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.
3. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond LearnWise Software International B.V.’s control will also be excluded from any such calculation.
4. Customer's sole and exclusive remedy, and LearnWise Software International B.V.'s entire liability, in connection with Service availability, shall be that for each period of downtime lasting longer than seventy-two (72) hours, LearnWise Software International B.V. will credit Customer five per cent (5%) of Service fees for each period of seventy-two (72) or more consecutive hours of downtime; provided that no more than one such credit will accrue per day.
5. Downtime shall begin to accrue as soon as Customer (with notice to LearnWise Software International B.V.) recognises that downtime is taking place and continues until the availability of the Services is restored.
6. In order to receive downtime credit, Customer must notify LearnWise Software International B.V. in writing within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.
7. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.
8. LearnWise Software International B.V. will only apply a credit to the month in which the incident occurred.
9. LearnWise Software International B.V.’s blocking of data communications or other Services in accordance with its policies shall not be deemed to be a failure of LearnWise Software International B.V. to provide adequate service levels under this Agreement.

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