THIS WEB PAGE IS A LEGAL DOCUMENT (“AGREEMENT”) BETWEEN YOU (“THE VISITOR”) AND MASTERY TECHNOLOGIES, INC. (“CORPORATION”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THE FREETRAININGPOWER.COM WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE FREETRAININGPOWER.COM WEB SITE. BY USING AND ACCESSING THE FREETRAININGPOWER.COM WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT ACCESS AND USE THE FREETRAININGPOWER.COM WEB SITE. CORPORATION MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE BY UPDATING THIS AGREEMENT. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.
TERMS AND CONDITIONS
These Terms and Conditions (“Agreement”) are made as of the Effective Date by and between Mastery Technologies, Inc., a Michigan corporation with offices located at 41214 Bridge Street, Novi, Michigan 48375, (“Corporation”) and the Visitor, as defined hereunder.
Because Corporation has developed and owns the freetrainingpower.com web site as defined hereinafter for use and access by Visitor via the Internet; and
Because Visitor desires to access and use the freetrainingpower.com web site in accordance with the terms and provisions of this Agreement;
Therefore, in consideration of the mutual benefits of the covenants and restrictions herein contained, Visitor and Corporation hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
SECTION 1.01 — RECITALS: The above recitals and identification of parties are true and correct.
SECTION 1.02 — DEFINITIONS: The following definitions shall apply:
- Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.
- freetrainingpower.com web site: The term “freetrainingpower.com web site” shall mean that certain Web Site referred to as the freetrainingpower.com web site, which is located on the Internet at https://freetrainingpower.com including any and all Corporation Technology used, incorporated, stored or accessible therein, as implemented on the Corporation System and made accessible to Visitor through the Internet using the Account Credentials.
- Web Site: The term “Web Site” shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.
- Effective Date: The term “Effective Date” shall mean the date the Visitor first accesses the freetrainingpower.com web site.
- Corporation Marks: The term “Corporation Marks” shall mean trademarks, trade names, service marks and trade dress of Corporation and parent companies, subsidiaries and affiliates of Corporation, including, without limitation, the Mastery Technologies mark.
- Corporation System: The term “Corporation System” shall mean computer systems and communication equipment used for hosting the freetrainingpower.com web site and providing Visitor access to the freetrainingpower.com web site.
- Corporation Technology: The term “Corporation Technology” shall mean any and all Technology developed by or for Corporation.
- Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.
- Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the freetrainingpower.com web site. The use of Licensed Content is subject to Visitor’s agreement to the terms and conditions of the Software as a Service Agreement (“SaaS Agreement”).
- Link: The term “Link” shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or Technology.
- Account Credentials: The term “Account Credentials” shall mean the password and username selected by Visitor for accessing the freetrainingpower.com web site as may be modified from time to time as provided hereunder.
- Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. §1839.
- Visitor: The term “Visitor” shall mean the individual or entity accessing the freetrainingpower.com web site, whether through a password-protected customer account or through public access.
- Technology: The term “Technology” shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.
- Term: The term “Term” shall mean a period of time starting on the Effective Date and ending on the date Visitor ceases to make use of the Web Site.
- Unauthorized Access: The term “Unauthorized Access” shall mean any access to freetrainingpower.com web site other than for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the freetrainingpower.com web site using the Account Credentials on behalf of Visitor in accordance with this Agreement.
- Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the freetrainingpower.com web site using another Visitor’s Account Credentials.
- Properties: The term “Properties” shall mean any and all of the following: freetrainingpower.com web site, Web Site, Corporation Marks, Corporation System, Corporation Technology, Licensed Content, Links, and Technology.
ARTICLE II: SCOPE OF USE
SECTION 2.01 — ACCESS: Corporation hereby grants Visitor a non-exclusive, non-transferable and revocable license to access the freetrainingpower.com web site, during the Term, solely for viewing, browsing, retrieving, uploading and posting information subject to the terms and provisions of this Agreement.
SECTION 2.02 — POLICY STATEMENT: During the Term, Visitor shall comply with the Policy Statement. Corporation may modify the Policy Statement from time to time at the exclusive discretion of Corporation.
SECTION 2.03 — ACCOUNT CREDENTIALS: Visitor hereby accepts responsibility for, and shall be liable for, all access to the freetrainingpower.com web site in connection with the Account Credentials. Visitor shall be responsible for the confidentiality of the Account Credentials. Modification of the Account Credentials shall be subject to the approval of Corporation.
SECTION 2.04 — UNAUTHORIZED ACCESS: Visitor shall prevent Unauthorized Users from accessing the freetrainingpower.com web site. Visitor shall prevent Unauthorized Access to the freetrainingpower.com web site.
SECTION 2.05 — CANCELLATION: Corporation may cancel the Account Credentials, for convenience and in the exclusive discretion of Corporation, upon providing written notice of such cancellation to Visitor in accordance with Section 5.06 of this Agreement. Visitor may cancel the Account Credentials, for convenience and in the exclusive discretion of Visitor, upon providing written notice of such cancellation to Corporation in accordance with Section 5.07 of this Agreement. Upon cancellation of the Account Credentials, Visitor shall immediately cease and desist any and all access to and attempts to access the freetrainingpower.com web site.
ARTICLE III: INTELLECTUAL PROPERTY
SECTION 3.01 — OWNERSHIP AND TITLE: Title to the freetrainingpower.com web site (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Corporation.
SECTION 3.02 — UNAUTHORIZED USE: Visitor shall not copy or download the freetrainingpower.com web site without the prior written consent of Corporation. Visitor shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the freetrainingpower.com web site without the prior written consent of Corporation. Visitor shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the freetrainingpower.com web site.
SECTION 3.03 — TRADEMARKS: Corporation shall retain all rights, title and ownership interests in the Corporation Marks and goodwill associated therewith. Visitor acknowledges that, excepting the Corporation Marks, all other product, service and company names mentioned in the freetrainingpower.com web site may be trademarks of their respective owners.
SECTION 3.04 — PROPRIETARY INFORMATION: Visitor shall hold Corporation Technology in strict confidence and shall not access or disclose Corporation Technology except as otherwise permitted under this Agreement. Visitor hereby acknowledges and agrees that the Corporation Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
SECTION 3.05 — NO CONTEST: Visitor shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Corporation in connection with the freetrainingpower.com web site.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
SECTION 4.01 — EXPRESS WARRANTIES: Visitor hereby acknowledges and agrees that Corporation, including officers, employees, Content Partners, Channel Partners, agents, directors and independent contractors of Corporation, has not made or granted to Visitor any express warranties concerning the freetrainingpower.com web site or any products and services offered or represented through the freetrainingpower.com web site. Visitor hereby acknowledges that the freetrainingpower.com web site does not constitute grant of an express warranty concerning any products and services offered or represented through the freetrainingpower.com web site and Visitor hereby waives any and all claims of warranty based on the freetrainingpower.com web site.
SECTION 4.02 — WARRANTY LIMITATION: THE PROPERTIES IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CORPORATION, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND VISITOR HEREBY WAIVES ALL WARRANTIES BY CORPORATION, AND ITS CONTENT AND CHANNEL PARTNERS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE PROPERTIES AND PRODUCTS AND SERVICES OFFERED THROUGH THE PROPERTIES. CORPORATION DOES NOT WARRANT AND VISITOR HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE PROPERTIES BY VISITOR WILL BE UNINTERRUPTED OR ERROR FREE. CORPORATION DOES NOT MAKE ANY WARRANTY AND VISITOR HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE PROPERTIES OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE PROPERTIES. VISITOR HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND PROPERTIES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF VISITOR AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE PROPERTIES.
SECTION 4.03 — INACCURACIES: Visitor hereby acknowledges that the Properties may contain errors, inaccuracies and omissions. Visitor shall assume any and all risk of loss, harm or damage associated with Visitor access to and use of the Properties.
SECTION 4.04 — LIMITATION OF LIABILITY: CORPORATION SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE freetrainingpower.com WEB SITE; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY VISITOR; (III) LOSS OF DATA; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE PROPERTIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
SECTION 4.05 — LIMITATION OF DAMAGES: THE SOLE REMEDY OF VISITOR FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, THE freetrainingpower.com WEB SITE, AND PRODUCTS AND SERVICES OFFERED THROUGH THE freetrainingpower.com WEB SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE freetrainingpower.com WEB SITE, AS DETERMINED BY CORPORATION.
SECTION 4.06 — INDEMNIFICATION: Visitor shall release, defend, indemnify and hold harmless Corporation (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by Visitor of the Internet, freetrainingpower.com web site or products or services offered through the freetrainingpower.com web site (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the freetrainingpower.com web site; (iii) Visitor’s negligence or any tortious acts (or failures to act) of Visitor; (iv) Properties, products or services offered through the freetrainingpower.com web site; and (v) any breach by Visitor of the obligations of Visitor under this Agreement.
SECTION 4.07 — EXPORT ASSURANCE: Visitor shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.
SECTION 4.08 — LINKS: Visitor hereby acknowledges that the freetrainingpower.com web site may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to Visitor and do not constitute an endorsement by Corporation of such Web Sites and the third party content therein.
ARTICLE V: MISCELLANEOUS
SECTION 5.01 — ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and with the exception of the SaaS Agreement supersedes all previous verbal and written agreements between Corporation and Visitor relating to the subject matter hereof.
SECTION 5.02 — AMENDMENTS AND MODIFICATIONS: Excepting modifications made to the Policy Statement by Corporation, the SaaS Agreement, and modifications made to this Agreement by Corporation, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of Corporation
SECTION 5.03 — SEVERABILITY: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
SECTION 5.04 — CAPTIONS: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
SECTION 5.05 — GOVERNING LAW: This Agreement shall be governed by the laws of the state Michigan, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be Oakland County, in the State of Michigan.
SECTION 5.06 — VISITOR NOTICE: All notices to Visitor shall be in writing. Notices to Visitor shall be deemed delivered when posted conspicuously on the freetrainingpower.com web site or when delivered to Visitor electronically, by commercial overnight delivery service, by Certified or Registered Mail – Return Receipt Requested – or by hand. Notices to Visitor shall be deemed given when dispatched. Notices posted conspicuously on the freetrainingpower.com web site or delivered to Visitor electronically (including, without limitation, electronic mail) shall be deemed written notices.
SECTION 5.07 — CORPORATION NOTICE: All notices to Corporation shall be in writing. Notices to Corporation shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail – Return Receipt Requested – or by hand to the address set forth below for Corporation. Notices to Corporation shall be deemed given on the date notice is received by Corporation (as evidenced in the case of Certified or Registered Mail by Return Receipt).
|Mastery Technologies, Inc.||41214 Bridge Street|
|Novi, MI 48375|
SECTION 5.08 — PRONOUNS/GENDER: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.
SECTION 5.09 — REMEDIES: All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to Corporation In addition to remedies at law and other rights which may be available, Corporation shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by Visitor.
SECTION 5.10 — WAIVER: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
SECTION 5.11 — SURVIVAL: The terms and provisions of Sections 2.04 and 2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation of the Account Credentials.
SECTION 5.12 — PUBLIC ANNOUNCEMENTS: All public announcements concerning the freetrainingpower.com web site or the relationship of Visitor and Corporation shall be subject to the prior written approval of Corporation.
SECTION 5.13 — ARBITRATION: Any controversy or claim, whether based on contract, statute, tort, fraud, misrepresentation or other legal theory, related directly or indirectly to this agreement, any contract or product, whenever licensed, and whether between the Parties or any of the Party’s employees, agents, or affiliated businesses, will be resolved by arbitration in accordance with the terms of this section. The Parties reserve the right to obtain an injunction in court to prevent any violation of this agreement. The rules of the American Arbitration Association will govern the arbitration of all claims. The arbitration panel will consist of three people at least one of whom will be expert in information technologies.
SECTION 5.14 — LITIGATION EXPENSE: In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
The purpose of this Agreement (hereafter referred to as the “Agreement”) is to set forth to define an arrangement under which Mastery will provide Software as a Service (“SaaS”) for the benefit of the Customer.
The standard SaaS Agreement with Mastery is provided below. By using our SaaS you are explicitly agreeing to all of the following terms and conditions:
“Courseware” shall mean programmed instructional presentations, including any quizzes, remedial feedback and downloadable documents, designed to deliver learning experiences to the user provided by Mastery to Customer under this Agreement.
“Software” shall mean the Software or Program(s) provided by Mastery to Customer under this Agreement.
“Hosting Services” shall mean the services provided by Mastery to Customer under this Agreement. A complete list of services provided may be found under the Specifications.
“Support Services” shall mean customer service and technical support provided to SaaS users as detailed under the Specifications.
“SaaS” shall mean the combination of internet-based (cloud) Courseware, Software, Hosting Services, and Support Services provided by Mastery to Customer as described by the Specifications.
“Source Code” shall mean the readable forms together with make and build files.
“Delivery” shall mean the SaaS transmitted by Mastery to Customer electronically and in accordance with security measures agreed upon by both parties as described in the this Agreement.
“Mastery Materials” shall mean any software, courseware, code, audio files, video files, data, graphics or other materials or resources transmitted to Customer in order to provide any of the services under this Agreement.
“Customer Courseware” shall mean any courseware, audio files, video files, data, graphics or other materials or resources installed to the MasteryNet™ LMS for transmission to Customer in order to provide any of the services under this Agreement.
Subject to the following terms and conditions of this Agreement, Mastery will provide SaaS for Customer:
1. SAAS SPECIFICATIONS.
Mastery agrees to provide Customer with SaaS according to the following Specifications (the “Specifications”):
Mastery provides SaaS in the form of cloud-based Courseware, Software, Hosting Services, and Support Services.
Individuals can purchase courseware licenses as single-play retail views to be started within 6 months, completed within 60 days, and reviewed for 7 days post-completion.
Employers can purchase courseware licenses under a:
- Volume license for courseware views to be paid in advance and used within two years.
Mastery additionally provides for employers to purchase a volume license for courseware views using SCORM-compliant packaging which enable courses to be installed and hosted on Customer’s LMS server.
Customer can license use of the MasteryNet™ LMS under a monthly license subscription.
MasteryNet™ LMS Software enables employers to use Mastery’s Hosting Services, assign Courseware, communicate assignments, define learner groups, create reports, customize a Customer-branded training site, post user notifications, import courseware, manage assignments, and track non-hosted training.
Hosting Services include your use of the MasteryNet™ LMS Software on Mastery’s cloud infrastructure to manage and deliver Mastery-Licensed Courseware and Customer Courseware. Hosting Services for a MasteryNet™ LMS Installation includes delivery of the Mastery-Licensed Courseware and Customer Courseware, a lifetime learning record of user completions (as long as Customer maintains the account), and on-demand certificates of completion.
Hosting Services for a MasteryNet™ LMS installation includes delivery of the Courseware and Customer Courseware, a lifetime learning record of user completions (as long as Customer maintains the account), and on-demand certificates of completion.
Mastery agrees to provide technical assistance to Customer in connection with the SaaS. Customer agrees to provide first response assistance to organizational users and individuals agree to using the help information provided on the website prior to using Mastery’s Support Services.
Mastery’s Support Services include:
- Mastery will use its best efforts to correct all computer program errors or cause the Course owner or publisher to use its best efforts to correct all computer program errors related to the SaaS during the term of this Agreement.
- Mastery will provide Customer’s Information Technology (“IT”) staff and training administration staff with unlimited telephone assistance related to the SaaS during normal business work days during the hours of 8:30 am through 5:15 pm Eastern Time Zone.
- Mastery agrees to help in using SaaS based on the customer’s needs via e-mail, phone, and Mastery’s web sites. Mastery agrees to maintain the self-help section on the website to include customer support pages with descriptions of product issues and resolutions and frequently asked questions.
1.1 SERVICES PROVISIONS.
Rights and License Granted.
Customer is granted only the rights and services related to the SaaS described on this website. Except for Customer employee course completion records, Customer is not granted any rights or license to the Software or Services under this agreement. Customer acknowledges that through its payments to Mastery it is granted access to the SaaS. Customer further acknowledges that at no time shall it be entitled to download, distribute, install or otherwise redistribute the Software or Courseware in any form not explicitly covered by this Agreement. The Customer understands that access to the SaaS ends when one of the following events takes place: 1) Customer payments are unpaid after sixty days (60 days) of the invoice date, or 2) Customer cancels its subscription with an advanced 30-day written notice and Customer’s account is paid in full.
Mastery reserves the right to remove any content Mastery views as harmful or content that could subject a customer to a penalty.
Limitations to Rights and License.
At no time will Customer hold title to or ownership of any of the SaaS, Mastery Data or Source Code or any Materials provided to Customer during the term of this Agreement. Customer access to employee course completion records will be withheld at the end of Term until Customer’s balance is fully paid.
U.S. export control laws and other applicable export and import laws govern Customer’s use of the SaaS, including technical data. Neither the Mastery Materials nor any direct product thereof may be exported, directly or indirectly, in violation of these laws, or may be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
1.2 LENGTH OF SERVICE.
Customer agrees to an initial term of service (“Term”). The length of contract term required is based on the type of service desired by Customer and shall be determined solely by Mastery as defined in the payment option selected by Customer.
1.3 SERVICE START DATE.
The first subscription payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Mastery receipt of payment for such first Term of service or upon a mutually agreed upon alternate date.
1.4 RENEWAL BY CUSTOMER.
In the case of subscription licenses this Agreement will automatically renew unless canceled in writing by Customer at least thirty (30) days prior to the end of Term renewal date. Renewal prices are subject to change. Renewal of Services by Customer indicates agreement to any contract revisions and price changes. Renewal fees for the following Term will be automatically invoiced to Customer’s account.
1.5 SAAS CUSTOMIZATION.
Customer acknowledges that the SaaS is provided “as is” and “as delivered” and cannot be construed as being able to be customized or modified in any way. Customer assumes all responsibility to review all features included in the SaaS prior to signing this agreement.
1.6 SAAS SUPPORT.
All support for the SaaS shall be conducted as defined in the Specifications.
2. END-USER PRICING AND SERVICES FEES.
End-User Pricing and Services Fees are subject to change at the sole discretion of Mastery.
3. TERMS OF PAYMENT.
Terms of payment are C.O.D. unless credit approval has been granted by Mastery. If credit approval has been granted, credit terms are net thirty (30) days upon receipt of invoice. Mastery reserves the right to revoke any credit extended and suspend all SaaS if customer’s payment is in arrears for more than sixty (60) days.
4. PROPRIETARY INFORMATION.
Proprietary information exchanged hereunder shall be treated as such by Customer. This information shall include, but is not limited to, the provisions of this Agreement, product and services information, materials, software, code, pricing, or any other materials transmitted to Customer under this Agreement. Customer agrees not to (a) decompose, disassemble, decode, or otherwise reverse engineer any Mastery program, code, or technology installed or delivered to Customer or any portion thereof; (b) transmit or allow to be transmitted any such materials to any third party except as necessary for the fulfillment of this Agreement; (c) use any Mastery Materials or SaaS in any way not intended or expressly provided for by this Agreement.
5. CUSTOMER INFORMATION.
Mastery takes ordinary and customary security measures in protecting customer information passing through software, web sites, e-mail, and the portions of non-public network within Mastery’s control. Mastery accepts no responsibility beyond ordinary and customary responsibilities.
Mastery and any suppliers of content materials make no warranties or representations of any kind, whether expressed or implied, for the SaaS Mastery is providing. Mastery and any suppliers of content materials also disclaim any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Customer, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or due to errors or omissions of Customer. Use of any information obtained by way of Mastery is at Customer’s own risk, and Mastery specifically denies any responsibility for the accuracy or quality of information obtained through its Services.
Connection speed represents the speed of an end-to-end connection. Mastery does not represent guarantees of speed or availability of end-to-end connections. Mastery expressly limits its damages to Customer for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Mastery specifically denies any responsibilities for any damages, direct or indirect, arising as a consequence of such unavailability.
6.1 NO DUTY TO CUSTOMER’S USERS NOT DIRECTLY CONTRACTED WITH MASTERY.
Mastery shall have no obligation to support, train or troubleshoot issues for any third-party user due to problems arising out of the use of the SaaS provided to Customer by Mastery. Third parties shall include, but are not limited to: vendors, contractors, Customer’s customers, Customer’s clients or any third party not directly contracted with Mastery for SaaS and SaaS Support.
7. COPYRIGHTS AND TRADEMARKS.
Customer warrants that Customer has the right to use any applicable trademarks or copyrighted Customer Courseware or materials that Customer installs, integrates or uses in connection with this SaaS.
8. TRANSFER OF AGREEMENT.
Customer may not assign or transfer this Agreement, in whole or in part, without the prior written consent of Mastery. In the event that Customer contemplates whole or partial sale of Customer’s business, ownership change, or change in jurisdiction, Customer shall notify Mastery by mail, facsimile, or email no less than sixty (60) days prior to the effective date of the event.
Mastery may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events: 1) Customer’s failure to comply with any provisions of the Agreement upon receipt of written notice from Mastery of said failure, 2) appointment of receiver or the filing of any application by Customer seeking relief from creditors, or 3) upon mutual agreement in writing by Mastery and Customer.
If legal proceedings are commenced to resolve a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.
Customer shall indemnify and hold Mastery harmless from and against any and all claims, judgments, awards, costs, expenses, damages, and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted, or imposed against Mastery directly or indirectly arising from or in connection with Customer’s marketing or Support Services of the product or Services or the unauthorized representation of the product and Services or any breach of this Agreement by Customer.
If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement and any disputes arising hereunder shall be governed by the laws of State of Michigan. A failure by any party to exercise or any delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.
The parties represent and warrant that, on start of service Term, they are authorized to enter into this Agreement in its entirety and duly bind their respective principals by their use of the SaaS provided by Mastery.