Under these General Terms and Conditions, TÜV SÜD America Inc., or the affiliate of TÜV SÜD America Inc. entering into the Order Confirmations (as defined below), shall be referred to as "Academy" and the subscriber of the E-Learning Solution (as defined below) shall be referred to as the "Customer". The Customer and the Academy shall be jointly referred to as "Parties" or individually as "Party".
Application and structure of these General Terms and Conditions
These General Terms and Conditions shall apply to any use by the Customer of any E-Learning Solution ("E-Learning Solution") as described in the service outlines and any commercial agreements available in the online shop of the Academy ("Order Confirmations") or the use of any content modules ordered by the Customer and mutually agreed by Academy under written agreement that set forth the usage rights and limitations and reference these General Terms and Conditions (hereinafter a "Content License"). The use of the E-Learning Solution by the Customer shall be for a limited period of time as part of a Software as a Service Model ("SaaS Model") as more fully set forth in the Order Confirmations. The Content License shall be for the content modules, period of time, and subject to the additional limitations of use as are set forth in the Content License. These General Terms and Conditions shall further apply for the provision of services by the Academy in connection with the E-Learning Solution or Content License. By submitting an online order form for SaaS Services to the Academy or entering into a Content License referencing these General Terms and Conditions, Customer agrees to be bound by these General Terms and Conditions, including all terms and conditions contained and/or referenced herein or any additional terms and conditions set forth in the Order Confirmations or Content License, and all such terms shall be deemed accepted by Customer. Customer warrants and represents that it has the legal right and authority to place and use the E-Learning Solution as contemplated by these General Terms and Conditions.
Accordingly, these General Terms and Conditions are divided into three parts (subject to the provisions in relation to scope and structure as set forth above).
SECTION 1 contains special provisions that are only applicable for the SaaS Model.
SECTION 2 contains special provisions that are only applicable for the Content License.
SECTION 3 contains general provisions that are applicable to both models.
The use of the E-Learning Solution shall apply exclusively on the basis of the following these General Terms and Conditions. Any terms and conditions of the Customer (if any), that are at variance or in addition to these General Terms and Conditions, shall be deemed to be expressly rejected hereby and shall not be applicable. Any agreements that differ from these General Terms and Conditions need to be expressly agreed in writing by the Academy in order to be valid.
Part 1 - The SaaS Model
1. Project Specifications
1.1 The main contractual obligation of the Academy under the SaaS Model is (i) providing the Customer with access to the E-Learning Solution in the version generally available at the Academy for the agreed term, and (ii) to grant access to the modules booked by the Customer as part of this version of the E-Learning Solution (as described in Section 15) (hereinafter referred to as: "SaaS-Services").
1.2 The manner of the E-Learning Solution made available as part of the SaaS Model shall be definitively set out in the Order Confirmations. The Academy cannot be held responsible for the SaaS-Services meeting the Customer's expectations or requirements. The Academy hosts the SaaS-Services in a location or locations as selected by the Academy in its sole discretion.
The Academy shall be entitled to vary the SaaS-Services, and in particular to include updates or upgrades, to the extent that such a change is necessary, in order to account for technological developments or to fix errors or problems with the SaaS-Services, and where any such variation does not lead to any material negative deviations from the properties agreed at the point of entering into the agreement.
1.3 The Academy shall make the SaaS-Services available to Customer for use via the internet. The SaaS-Services are available 97% of the time on average in a year (365 days), excluding downtime for maintenance and updates per Section 1.7. The demarcation point where the availability is measured shall be the WAN directed router output of the computer center used for providing the SaaS-Services. Maintenance times as per Section 1.7 shall be deducted when calculating the availability. In addition, the Academy shall not be responsible to make the SaaS-Services available in the following circumstances: (i) any problem or failure caused by the Customer (e.g. API not properly used or Customer uses existing functionality in a destructive manner), (ii) the non-availability of the SaaS-Services is at the request of the Customer and/or the non-availability of the SaaS-Services during work carried out at Customer's request; (iii) in case of incidents of non-availability or any failure caused by a force majeure event; and (iv) if and in as much the Academy needs the assistance of the Customer while determining or isolating the problem or failure, and the Customer is not able to lend this assistance for reasons that are deemed to be at the Customer's own risk. The Academy shall be under an obligation to monitor the SaaS-Services and the availability of the respective servers required for the respective SaaS-Services.
1.4 The SaaS-Services do not include any internet access for Customer, but merely the making available of the SaaS-Services to be accessed via the internet, within the agreed availability parameters. A prerequisite for using the SaaS-Services shall be compliance with the technical system requirements by the Customer. The technical system requirements for using the SaaS-Services can be accessed at https://www.tuv-sud-psb.sg/sg-en/activity/training-services/technical-system-requirements-for-using-digital-academy-portal. In the case of updates, the Academy shall be entitled to change the technology system requirements in order to comply with then-current industry standards. Customer is responsible for meeting the minimum system requirements in order to access the SaaS-Services, as communicated by the Academy from time-to-time.
1.5 Customer must not use the SaaS-Services in a manner that would endanger the security and/or the performance of the SaaS-Services infrastructure or otherwise violate the intellectual property rights or other rights of any third party. Without limiting the generality of the foregoing, Customer will not knowingly access, store, distribute or transmit any viruses, or any material while using the SaaS-Services that: a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; b) facilitates illegal activity; c) depicts sexually explicit images; d) promotes unlawful violence; e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or f) in a manner that is otherwise illegal or causes damage or injury to any person or property, and the Academy has the right, without affecting the Academy’s other rights, to disable Customer's access to any material that breaches this Section 1.5.
1.6 Scheduled maintenance may be carried out by the Academy (including its applicable suppliers) outside the core business times of the Academy. In addition to this, the Academy shall be entitled to carry out unscheduled maintenance work; the Academy shall endeavor to notify the Customer a reasonable time in advance of any such unscheduled maintenance work, providing an explanation as to why such maintenance work is necessary. The SaaS-Services will not be available during any such scheduled or unscheduled maintenance work.
1.7 A contract shall be concluded by way of an online order of SaaS-Services in the online shop of the Academy. The Customer can add the desired E-Learning Solution to their shopping basket. By going to the "Checkout" and agreeing to place a binding order, the Customer acquires the right to access the SaaS-Services for the agreed term, subject to payment of the invoice then sent to the Customer. In the case of an online order, the Order Confirmations shall be transmitted via email.
1.8 Customer understands that the SaaS-Services may enable or assist Customer to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that Customer does so solely at Customer's own risk. The Academy shall have no liability in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party.
2. User Rights
2.1 Solely during the term of the subscription to SaaS-Services as set forth in the Order Confirmations and subject to Customer’s payment of the fees due and payable per the Order Confirmations, the Academy shall grant to the Customer a non-exclusive, non-transferrable, limited right to use the SaaS-Services online, without any right to sublicense. This shall include the right to access the SaaS-Services for Customer’s internal training purposes only.
2.2 The usage right shall apply for the number of authorized users and content modules stipulated in the Order Confirmations. An authorized user shall be a named, natural person. Any change of the natural person assigned to a user account shall only be permissible with the prior consent of the Academy, such consent not to be withheld unreasonably.
2.3 The Customer shall not be entitled to use the SaaS-Services more extensively than explicitly permitted within the framework of these General Terms and Conditions and the Order Confirmations. In particular, the Customer shall not be entitled to (i) make the SaaS-Services accessible to third parties, other than to those explicitly permitted in these General Terms and Conditions, (ii) undertake any adaptations to the SaaS-Services, or (iii) grant any sub-licenses for the SaaS-Services. Customer may not relicense the access to SaaS-Services or use the SaaS-Services for third-party training, commercial time-sharing, rental or service bureau use. Customer shall not copy, translate, adapt, modify, decompile or reverse assemble the SaaS-Services (including specifically any security code) or any portion thereof, nor shall Customer analyze or otherwise examine any such software or any portion thereof for reverse engineering purposes. Customer warrants and represents that it will not access all or any part of the SaaS-Services in order to build a product or service which competes with the Academy or its affiliates.
2.4 The Academy or its suppliers shall retain all title, copyright and other proprietary rights in or related to the SaaS-Services and in all copies of all or any portion thereof. Customer does not acquire any rights, express or implied, in the SaaS-Services other than those specified in the Order Confirmations and these General Terms and Conditions. All rights not specifically granted to Customer herein are specifically excluded from the scope of this license and are hereby reserved by the Academy. Customer agrees to maintain the copyright, trademark, and other notices that appear in or with the SaaS-Services and on all associated media and documentation. Following the term of the subscription as set forth in the Order Confirmation, Customer shall discontinue all use and access to SaaS-Services.
2.5 Insofar as the Order Confirmations refer to any accompanying materials, the Academy hereby grants the Customer a non-exclusive right to electronically download and print out one paper copy thereof, and to create a backup copy, unless the Order Confirmations stipulate something different.
2.6 The Customer shall grant to the Academy the simple, world-wide right, limited in time to the term as per Section 3 below, to use customer content within the meaning of Section 4, and in particular to copy and adapt this, to make it publicly accessible, to the extent that this is necessary, in order to provide the SaaS-Services to the Customer.
3. Term and Termination
3.1 The contract for use of SaaS-Services shall run for the term stipulated in the Order Confirmations. Unless the contract is terminated no later than 1 month before the expiry of the current term, then it shall automatically be renewed for a further term corresponding in length to the previous term, subject to Customer’s payment in full for the then-current fee.
3.2 Terminating the contract for cause shall be possible for either Party, pursuant to the statutory requirements therefor. The right for the Academy to terminate without notice for cause shall arise in particular where:
i. The Customer is in breach of the user rights and restrictions set forth in Section 2;
ii. The Customer is in breach of Section 4.1 to such an extent that this could result in more than just trivial losses for the Academy, or which could affect the security or operability of the SaaS-Services in a manner that is not merely insubstantial, and where the Customer fails to remedy such breach within 30 days of being asked to do so (or immediately to the extent that such breach is in capable of cure or continued breach would cause irreparable harm to the Academy, its suppliers and/or other customers;
iii. Where an immediate termination is necessary, in order to comply with applicable law or mandatory demands from a state authority;
iv. Where it is not (or no longer) possible to provide the Customer with the SaaS-Services for regulatory reasons, without undertaking fundamental changes to the SaaS-Services.
3.3 The Academy shall be entitled to remove all Customer Content (as defined in Section 4.1 below) from the SaaS-Infrastructure (as defined below) within 30 calendar days after termination of the contract. It shall be the responsibility of the Customer to save any Customer Content before that time. At the request of the Customer, the Academy shall release Customer Content, such a request to the Academy must be made in writing.
4. Customer Content
4.1 Customer Content shall mean all content or data uploaded to the IT infrastructure used for providing the SaaS-Services (hereinafter "SaaS-Infrastructure") by a Customer or any user authorized by that Customer (such data and content hereinafter referred to as "Customer Content").
4.2 The Customer shall not be permitted to upload Customer Content which:
i. infringes any rights of third parties;
ii. are in contravention of applicable law;
iii. would lead to the Academy being in contravention of applicable law, or which would be likely to lead to such a situation;
iv. would negatively affect the security of the SaaS-Services, or would be likely to do so;
v. would negatively affect the performance of the SaaS-Services more than just in a trivial manner;
4.3 Upon request, the Customer shall delete any Customer Content that is in breach of Section 4.2 from the SaaS-Infrastructure within a reasonable period, such period to be set by the Academy. Depending on the severity of the threat posed by the content or data in breach of Section 4.2 to the SaaS-Services or to the Academy, in individual cases a demand to delete these immediately may be considered a reasonable period of time. The Academy shall be entitled to delete any content and data from the SaaS-Infrastructure, if the Customer fails to do so within the time period stipulated above. There is no need to stipulate a period within which the content needs to be removed, if the Academy were to risk more than just trivial losses if such content was not removed immediately. In such a case, the Academy shall be entitled to delete the relevant Customer Content directly.
4.4 In the event that the Customer should upload Customer Content to the SaaS-Infrastructure which are in breach of Section 4.2, then the Customer shall indemnify the Academy against any and all claims asserted against the Academy resulting from this and shall bear the costs resulting therefrom. This shall also include reasonable legal costs.
4.5 The Academy shall not accept any responsibility for the content of Customer Content. There shall be no obligation on the part of the Academy to check the content and data supplied in respect of their lawfulness.
5. Defects Liability, Maintenance and Support
5.1 The rights of the Customer in cases of material and legal defects shall be governed by the legal provisions in Part 3 of these General Terms and Conditions.
5.2 The Academy (either itself or through its third party supplier) provides the Customer with support during the Academy’s working days (excluding Saturdays) from 09:00 a.m. to 3:00 p.m. EST. The details in respect of the respective support services shall be stipulated in the Order Confirmations.
5.3 Customer shall exclusively have the email address [email protected] (or such other email address as may be communicated by Academy to Customer from time to time) available to report errors with the SaaS-Services. Where it is necessary to establish contact by telephone, the Academy will establish contact with the Customer.
Part 2 - Content License
6. Project Specifications
6.1 The main contractual obligation of the Academy as part of the Content License shall be to make the modules agreed in the Order Confirmations available to the Customer in a format as selected by the Academy.
6.2 The Academy cannot be held responsible for the E-Learning Solution not meeting the Customer’s expectations. Customer shall be solely responsible for determining the suitability of all content for Customer's internal business purposes.
6.3 A contract shall be concluded by contacting the Academy in the online shop of the Academy and establishing a Content License which outlines the modules, period of time of use of the modules, other restrictions as applicable for Customer's use of any such modules and applicable fees for such use. The Content License shall be transmitted via email.
7. User Rights
7.1 Subject to Customer's payment of all applicable fees due for the Content License, the Academy shall grant to the Customer a limited, non-exclusive and non-transferrable right, to use the E-Learning Solution for Customer’s internal business purposes. Customer shall only be entitled to create copies of the E-Learning Solution to the extent that this is necessary for the contractual use thereof and a reasonable number of backup copies. The Parties may agree further usage rights in the Order Confirmations.
7.2 The Customer shall be prohibited from using the E-Learning Software in order to train external persons unless something different has been agreed by the Parties in the Order Confirmations. In addition, Customer warrants and represents that it will not use any portion of the E-Learning Solution in order to build a product or service which competes with the Academy or its affiliates.
7.3 The Customer shall not be entitled to use the E-Learning Software more extensively than explicitly permitted within the framework of these General Terms and Conditions and the Order Confirmations. The Academy or its suppliers shall retain all title, copyright and other proprietary rights in or related to the E-Learning Solution and in all copies of all or any portion thereof. Customer does not acquire any rights, express or implied, in the SaaS-Services other than those specified in the Order Confirmations and these General Terms and Conditions. All rights not specifically granted to Customer herein are specifically excluded from the scope of this license and are hereby reserved by the Academy. Customer agrees to maintain the copyright, trademark, and other notices that appear in or with the E-Learning Solution and on all associated media and documentation. Following the term of the subscription as set forth in the Order Confirmation, Customer shall discontinue all use and access to the E-Learning Solution.
Part 3 - General provisions
8. Contract Partner, Restrictions on Supply
Unless otherwise provided in the Order Confirmations or corresponding invoice, the Customer's contract partner and operator of the E-Learning Solution is TÜV SÜD America Inc..
8.1 Customers can get in contact with the Academy by the following means: Email: [email protected] Telephone : (978) 573-1997.
9. Modules and Materials contained therein
9.1 The Academy makes it possible for the Customer to use the modules booked by them as part of an E-Learning Solution. It shall be made clear in the respective Order Confirmations which modules the Customer booked.
9.2 Where the modules contain copyrighted materials, the Customer shall be granted a non-exclusive right to use these to the extent that this is necessary for the contractual use of the module as more fully set forth in these General Terms and Conditions. Any and all content provided by the Academy is the sole and exclusive property of the Academy or its suppliers and is protected by U.S. laws and international treaties. Customer does not become the owner of any portion of the E-Learning Solution but is entitled to use them as specifically permitted according to the terms of these General Terms and Conditions and the Order Confirmations or Content License.
10. Conditions for Payment; Payment Terms
10.1 The Customer shall pay the agreed fees to the Academy for the E-Learning Solutions. The Academy shall be entitled to require payment in advance of providing the E-Learning Solution to Customer.
10.2 Unless there is anything different agreed between the Parties, the fees agreed between the Parties shall be in respect of one month of Customer’s use of the E-Learning Solution being provided and shall be due at the beginning of each month.
10.3 All invoices shall be due upon receipt. Customer agrees that a monthly administrative and finance charge of 1.5% of the outstanding account balance, but not in excess of the maximum allowed by law, will be payable by Customer for any account over 30 days past due. Customer also agrees to pay the Academy's costs of collection, including attorneys' fees, incurred in collecting any past due amounts. The Academy reserves the right to suspend Customer’s use and access to the E-Learning Solution until payment is received in full.
10.4 In the event that Customer is paying for the E-Learning Solution via credit card, Customer authorizes the Academy to place regularly scheduled agreed upon charges to Customer's credit card.
10.5 Customer shall be responsible for paying any and all taxes which apply now or in the future to the E-Learning Solution, other than taxes on the Academy’s net income.
10.6 In case of termination, of these General Terms and Conditions or any Order Confirmations or Content License hereunder, however occurring, the Academy is entitled to demand, and Customer shall be obligated to pay a proportion of the contractual remuneration equal to the proportion (if any) of the services/work actually carried out up through and including the date of termination.
11. Liability and Disclaimers
11.1 THE E-LEARNING SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND THERE ARE NO WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) FOR E-LEARNING SOLUTION FURNISHED HEREUNDER OR IN CONNECTION HEREWITH. ACADEMY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE. ACADEMY DOES NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE E-LEARNING SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF OR USE OF THE E-LEARNING SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER MUST EXERCISE PROFESSIONAL JUDGMENT WHEN USING ANY INFORMATION CONTAINED IN THE E-LEARNING SOLUTION AND TAKE SOLE RESPONSIBILITY FOR ITS USE.
14.2 THE ACADEMY SHALL NOT BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING FROM ANY, EVEN IF THE ACADEMY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION OF ANY KIND, LOST PROFITS OR FAILURE TO REALIZE EXPECTED SAVING AND REGARDLESS OF WHETHER ANY CLAIM FOR SUCH RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY). THE ACADEMY’S ENTIRE LIABILITY, FOR ANY CAUSE RELATED TO OR ARISING OUT OF THESE GENERAL TERMS AND CONDITIONS, REGARDLESS OF THE FORM OR NATURE OF THE ACTION, SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER DOCUMENTS OR CONTENT LICENSE IN THE TWELVE (12) MONTH PRIOR TO THE DATE OF THE CAUSE OF ACTION. No claim may be asserted by either Party against the other Party with respect to any event, act or omission for which a claim accrued more than two (2) years prior to such claim being asserted.
12. Additional Services
12.1 Where the Parties have agreed on the provision of any supplementary services in the Order Confirmations or Content License (e.g. customizing, creating animations, making films, creating quizzes, or setting up and carrying out webinars) by the Academy, the provisions of this Section 15 shall apply to those services. The provision of any such supplementary services attracts a separate fee and shall only be due if this is explicitly agreed in the Order Confirmations or Content License. The specifics can be found in the Order Confirmations or Content License; if it is not specified further therein, then the services shall be charged by time and material expended on the basis of the general hourly rates of the Academy.
12.2 Customer’s use of the work results of any such additional, supplemental services shall be as set forth in the Order Confirmations or Content License.
12.3 Where the Academy produces work results for the Customer that concern the general personal rights of Customer’s employees or designees (e.g. because such persons participate in instructional films), it shall be the responsibility of the Customer to ensure that the relevant permissions are granted by the persons involved. The Customer shall indemnify the Academy against any claims arising from any breach of the abovementioned obligations.
12.4 To the extent that the E-Learning Solution offers the option to book quizzes and the ability to determine which persons are to be provided with the results of a quiz carried out by the employee, then the responsibility for ensuring that this information is provided in a lawful manner (particularly in respect of employment and data protection law) shall rest with the Customer.
12.5 In the event that the supplementary services as per the Order Confirmations require the participation of the Customer or require the Customer to provide any infrastructure (e.g. in the case of webinars), the Customer shall take on such participation and making available of such infrastructure as the sole responsible person as a main contractual obligation. In the event that the Customer fails to participate or to make infrastructure available, this shall release the Academy from its obligation to provide the services concerned. This shall not affect any further claims of the Academy.
13. Special Conditions for App Users
13.1 To the extent that SaaS-Services are made available to the Customer as an app, or where access to the E-Learning Solution is through an app, then the following additional provisions shall apply in respect of that app.
13.2 The app offer may be available via mobile applications for mobile telephones or tablets, operating Apple IOS or Android. The Academy may, at its own discretion, decide to also make it accessible via other operating systems.
13.3 The app may contain third-party content, which may be marked accordingly by the Academy. The Academy does not check whether third-party content is complete, correct or lawful, and the Academy accepts no liability, nor does it grant any warranty in respect of whether any third-party content is complete, correct, lawful or up to date. This shall also apply in respect of the quality of third-party content, its suitability for a certain purpose, and shall also apply in respect of any third-party content linked to on external websites.
13.4 The app may contain links to external websites of third parties, the content of which the Academy has no influence over. Accordingly, it is not possible for the Academy to accept any liability for any such external content. Responsibility for the content of the linked pages shall rest with the respective provider or operator of the website in question. The linked pages were checked for potential legal violations at the time they were linked to. At the point in time when those pages were linked to, no legal violations were noticeable. However, without any concrete suspicion of any legal violation, it cannot be reasonably expected to monitor the content of linked pages on a permanent basis. If we become aware of any legal violations, any links to such sites will be removed immediately.
13.5 The Customer shall be responsible themselves for obtaining the technological requirements for use (e.g. internet connection, mobile phone connection), and shall do so at their own expense.
13.6 To the extent that the app includes the possibility of in-app purchases, the Customer has the option of purchasing additional modules or media content via the in-app purchase function, directly via the Apple App Store, or, as the case may be, Google Play.
14.1 The confidential information the Customer receives from the Academy (whether in writing, orally, tangible or intangible, or by another means) shall be treated as confidential by the Customer and may only be used for the purposes stipulated in the Order Confirmations or the Content License and these General Terms and Conditions. In particular, the Parties agree that any information relating to the E-Learning Solution, business connections, business planning and strategy, any current and planned projects, as well as any software, marketing plans, and financial information shall be deemed to be of particular confidentiality and must only be used solely for the purposes and to the extent permitted by these General Terms and Conditions. Confidential information may not be reproduced without the consent of the Academy, nor may it be passed on to third parties, either directly or indirectly.
14.2 The Customer shall only disclose confidential information to those persons within their organization as require such knowledge in order to carry into effect the purpose stipulated in the Order Confirmations or Content License. The Customer shall notify such persons of this confidentiality clause and shall oblige them to comply with the provisions thereof.
14.3 The Customer shall protect any confidential information obtained from the Academy with the same level of care the Customer applies to its own business and trade secrets, but in any event, shall treat them with at least the level of care to be expected from a prudent business person.
14.4 The Customer shall be released from their obligation to treat information as confidential where
a) such confidential information is public knowledge at the time of disclosure;
b) such information enters the public realm after disclosure without the recipient having breached their duty of confidentiality;
c) at the time of disclosure such information was demonstrably already in the possession of the recipient; or
d) such information is received lawfully from a third party at the same time as or after disclosure, and where such third party was entitled in respect of the disclosing party to pass on such information.
15. Force Majeure
15.1 If the Academy’s performance is prevented, restricted or interfered with by reason of a force majeure event (as defined below), then the Academy shall be excused from that performance and all liability resulting therefrom to the extent of that prevention, restriction, or interference. The Academy shall resume its performance promptly whenever such causes are removed. "Force majeure events" shall be any cause or condition beyond the reasonable control of the Academy or its applicable supplier, including but not limited to natural catastrophes, acts or omissions of a government or its agencies or departments, labor strikes, lockouts or other disturbances, wars, riots or difficulties in procuring labor, energy shortages, shortage of suitable parts or materials, computer malfunctions, transportation problems, Customer's failure to fulfill its obligations or delays in delivery by the Academy's suppliers.
15.2 Where such events make it significantly more difficult or impossible for the Academy to perform the services, and where such obstruction is not just a temporary one, the Academy shall be entitled, at its discretion, to either terminate the contract without notice or to withdraw from the contract.
15.3 In the case of temporary problems, the delivery and performance times shall be extended or postponed by the length of time of the obstruction, plus a reasonable re-start period. Where the Customer cannot be reasonably expected to accept the services as a result of the delay, the Customer shall be entitled to terminate the contract by giving notice of this to the Academy in writing without delay. Unreasonableness will generally be assumed where the obstruction continues for a continuous period of more than 90 days.
16. Governing Law; Jurisdiction
16.1 These General Terms and Conditions and any Order Confirmations or Content License and all rights and duties of the Academy and Customer arising thereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to its conflict-of-law rules.
16.2 Customer hereby irrevocably submits to the nonexclusive jurisdiction of any Massachusetts State court or any U.S. Federal court located in the Commonwealth of Massachusetts for any action or proceeding arising out of or relating to the provision by TÜV of services to Customer. Customer hereby irrevocably agrees that all claims with respect to such action or proceeding may be heard and determined in such court or courts. The foregoing shall not affect the right of the Academy to bring any action or proceeding against Customer or its property or assets in the courts of any other jurisdiction.
17.1 The Academy may audit Customer’s records for the purpose of verifying Customer’s compliance with these General Terms and Conditions and the applicable Order Confirmations or Content License, with reasonable notice and at the Academy’s own expense. In the event that any such audit reveals a discrepancy in Customer’s use of the E-Learning Solution, the Academy will invoice Customer for any additional use of the E-Learning Solutions plus interest and Customer shall reimburse the Academy for its reasonable costs in performance of any such audit.
17.2 The Academy reserves the right to change these General Terms and Conditions in the future. The Academy shall endeavor to notify the Customer of any such changes in advance. The Academy make such changes by posting them on the Academy website and/or including a reference in the release notes for the SaaS Model. Customer should check the Academy website for such changes frequently. Customer’s continued access to the E-Learning Solution after such changes conclusively demonstrates Customer’s acceptance of those changes.
If the Customer does not agree to the changes, then the Customer shall be entitled to object to these changes and discontinue use of the E-Learning Solution, unless terms are otherwise mutually agreed in writing between Academy and Customer. The provisions of this Section 17.2 shall also apply for any changes to the applicable E-Learning Solution itself.
17.3 In the event that individual provisions of these General Terms and Conditions should be or become invalid or unenforceable, either in their entirety or in part, then this shall not affect the validity of the remaining provisions. The same shall apply in cases where there is an omission in the contract.
17.4 The Parties undertake to agree such a new provision in place of the invalid or ineffective or unenforceable provisions as most closely resembles, to the extent this is legally possible, what the parties would have intended at the time of entering into the contract, if they had thought of that point at the time.
17.5 The Academy shall be under no obligation to perform the services under these General Terms and Conditions itself and shall be free to effect performance of some or all services by way of sub-contractors.
17.6 Customer agrees to comply with all applicable laws, rules and regulations with respect to Customer’s use of the E-Learning Solution. Without limiting the generality of the foregoing, Customer shall not use E-Learning Solution or allow the transfer, transmission, export, or re-export, of the E-Learning Solution or portion thereof, in violation of any export control laws or regulations. Customer represents, warrants and undertakes that it is not a branch or subsidiary of any entity that is domiciled in a prohibited country per U.S. export laws and does not engage, either directly or indirectly, in commercial activity of any kind with any person or entity located or domiciled in a prohibited country or with any country, state, entity, vessel or individual with whom commercial activities are restricted pursuant to applicable law.
17.7 No waiver of any rights, obligations, or defaults with respect to these General Terms and Conditions or any Order Confirmations or Content License shall be effective unless in writing and signed by the Party against which the same is sought to be enforced. One or more waivers of any right, obligation, or default shall not be construed as a waiver of any subsequent right, obligation, or default. No delay or failure of either Party in exercising any right and no partial or single exercise thereof shall be deemed to constitute a waiver of that right or any other rights.
17.8 The Academy is an independent contractor for the provision of services, not an agent of the Customer. Customer has no authority to act on behalf of the Academy or to bind the Academy with respect to any promise or representation unless specifically authorized in writing to do so by the Academy. Customer may not, without the Academy's prior written consent, assign or transfer any Order Confirmations or Content License, or any of its rights or obligations under these General Terms and Conditions or any Order Confirmations or Content License, to any other person. The Academy may delegate its obligations to its affiliates, agents, suppliers, and contractors, and the Academy may disclose to any such persons any information required by them to perform the duties so delegated to them, but such delegation shall not relieve the Academy of its obligations under these General Terms and Conditions or the applicable Order Confirmations or Content License.
17.9 Any notice, request or demand required or desired to be given from one Party to the other must be in writing and shall be effective upon receipt if delivered personally, seven days after mailing if sent by pre-paid registered or certified mail, and on the next business day if sent by reputable overnight courier. Notices shall be sent to the Party’s then-current principal mailing address, or as a Party may otherwise specify in a notice to the other.
As of: February 1, 2019
TÜV SÜD America Inc. - E-Learning General Terms and Conditions
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