Terms Of Service

Last Updated: May 15, 2021

1. Agreement

1.1 These Terms of Service (“Terms”) apply to your access to and use of the websites, applications, and other products and services, including Custom eLearning Platform construction services, high performance hosting services, Platform Maintenance and Management Services, pieces of training, events, marketing and consulting services, review, and message boards, and various other Knowledge Management and Knowledge Delivery applications (collectively, our “Services”) provided by CodeisCode Marketing & Consulting LLC. (“CodeisCode”, “we”, or “us” or “Provider”).

By scrolling through these terms, by clicking to indicate your acceptance of these Terms, or otherwise accessing or using our Services, or by paying the Invoice or Order to which they are attached or referenced, you are entering into an agreement with CodeisCode (the “Provider”) to provide Services to you (the “Customer”) each hereinafter may be referred to as a “Party” and collectively as the “Parties”.

You furthermore agree to use our Services in accordance with our Acceptable Use Policy, which is incorporated by reference into these Terms.

You agree that the agreement between us is comprised of these Terms of Service, the Order to which they are attached or by which they are referenced, the SOW, AUP, DPA, LSL, and Privacy Policy which are referenced herein, and any other terms, exhibits, schedules, or addenda which are referenced by any of the preceding (collectively the “Agreement”).

If you do not agree to these Terms, including the mandatory arbitration provision and waiver of Jury Trial as outlined in Section 20, do not access or use our Services.

The Agreement sets forth the exclusive terms and conditions between the Parties and supersedes all previous proposals, agreements, negotiations, and other written or oral communications between the Parties with respect to the Services provided hereunder.

Background: Customer desires that the Provider provide Services and Software (as defined below) to Customer and Provider is highly skilled and experienced in providing the Services and Software required hereunder:

1.: Custom eLearning Platform Planning & Setup
2.: Custom-tailored High-Performance Hosting for eLearning Platforms
3.: eLearning Platform Maintenance and Management

If you’ve purchased a Legacy License of the Software also referred to as eLearnCommerce Professional refer to the LSL referenced on our Legal Information Overview or contact our Legal Department under legal@elearncommerce.com for further clarification.

1.2 If there is a conflict between the terms of the Agreement, the terms shall govern according to the following order of precedence: 1) the Order, 2) these Terms of Service, and 3) any terms incorporated by reference by either of the above.

The substantive terms contained in your purchase order, order confirmation, a notice of receipt, or any other transactional document, form, or notice provided by you shall be void and without effect, even where your customary business practices require a showing of assent to such terms by us such as by signature or reference in an invoice.

1.3 We may update these Terms of Service from time to time at our sole discretion; the current version may be found here: Terms of Service 

In the event of any material change, we will provide you with written notice. Your continued use of the Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate the Agreement in accordance with the Termination section below.

In addition to these Terms, we may ask you to accept additional terms that apply to specific features, products, or services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to your access to or use of the applicable feature, product, or service.

If you have any questions about these Terms or our Services, please contact us at legal@codeiscode.com

Now, therefore, in consideration of the promises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:

2. Definitions 

Whenever used in this Agreement, the following capitalized words, and phrases, unless the context otherwise requires, shall have the following meanings:

2.1 “Affiliates” means, with respect to a Party, any person or entity that controls such Party, is controlled by such Party or is under common control with such Party.

2.2 “Authorized User” means the specific individuals whom Customer designate to use the Software within the confines of the Fees.  Authorized Users may Customer’s or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf.

2.3 “Change Order” means a written instrument signed by the Provider and Customer  stating their agreement upon changes to the Scope of Work;

2.4 “Change Request” means the document utilized to request changes or revisions in the Scope of Work;

2.5 “Change Request Proposal” means a written instrument by Provider in response to a Change Request;

2.6 “Confidential Information” has the meaning set forth in paragraph 9 and 12 herein;

2.7 “Damages Exceptions” has the meaning set forth in paragraph 17 herein.

2.8 “Deliverable” means any material to be provided by Provider pursuant to the Scope of Work;

2.9 “Disclosing Party” means a  Party to this Agreement disclosing confidential information to the Receiving Party;

2.10 “Documentation” means all written materials, binders, training disks, videos, and other materials supplied by Provider and related to the Software, other than the Software;

2.11 “Fees” has the meaning set forth in paragraph 7 herein.

2.12 “Initial Term” has the meaning set forth in the SOW or SLA.

2.13 “Intellectual Property” has the meaning set forth in paragraph 6 herein;

2.14 “License” means an  agreement between the Provider and Customer pursuant to which the Customer is  authorized to use certain Licensor Intellectual Property in connection with the Services;

2.15 “New Release” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Provider makes available to Customers as part of Support and Maintenance

2.16 “Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement;

2.17 “Renewal Term” has the meaning set forth in paragraph 10.1 herein;

2.18 “Scope of Work” means those services, tasks, and descriptions of  deliverables to be performed in accordance with this Agreement;

2.19 “Services” means those services performed by Provider as enumerated in Schedule “A” and Schedule “B” of this Agreement.

2.20 “Specifications” means the technical and performance functions of the Software, as specifically set forth in Schedule “A” of this Agreement.

2.21 “Software” means the computer software identified in Schedule “A”; including related Documentation.

2.22 “Source Code” means a series of instructions or statements in a high-level computer programming or scripting language that are (i) readable and understandable by humans trained in the applicable computer language and (ii) able to be transformed by an interpreter or compiler into machine-readable, executable code for actual use on a computer system;

2.23 “Support and Maintenance” means Provider’s support and maintenance services for the Software. Customer’s level of Support and Maintenance will be enumerated in the Statement of Work;

2.24 “Statement of Work” or “SOW” means certain documents specifying, without limitation, certain Scopes of Work together with a description of the objective and time frame of the Services to be provided by Provider to Customer;

2.25 “Term” has the meaning set forth in paragraph 10 herein.

2.26 “AUP” means the Acceptable Use Policy.

2.27 “Beta Services” means any services which are clearly and conspicuously designated by us as Beta Services. Beta Services may be in the early stages of testing or development, are not recommended for production use, and are subject to additional disclaimers and limitations as described in the Agreement.

2.28 “Customer Content” means the text files, images, photos, videos, sounds, or other materials or works of authorship belonging to you or your end-users that you cause to be stored within the Services, excluding Customer Data.

2.29 “Customer Data” means the information about you or your Authorized Users which is required by us in order to provide the Services to you.

2.30 “DPA” means the Data Privacy Addendum.

2.31 “Third-Party Services” means certain third-party products or services which are not sold or licensed by us but which are made available for you, at your sole discretion, to enable or integrate with the Services (e.g. third-party themes and plugins available through the WordPress administrative portal). We maintain no control over and disclaim any and all liability for Third Party Services, even where we may have provided limited support or advice to you in relation to such services. Such support and advice are provided in good faith, AS-IS and AS-AVAILABLE, and solely for your convenience.

2.32 “CodeisCode”, “we”, or “our” means CodeisCode Marketing & Consulting LLC, a Delaware Limited located at 427 N. Tatnall St. 19801 Wilmington DE – USA

3. Services

3.1 Performance of Services. Subject to the terms and conditions of this Agreement Customer hereby retains Provider to perform the Services as set forth in certain SOW’s or SLA’s which are incorporated and referenced in this Agreement as though fully stated herein.

3.2 Statement of Work.  Each Statement of Work,  enumerating the Scope of Work, together with the terms of this Agreement, constitutes a separate contract that will be effective as of the date accepted by authorized representatives of Customer as stated herein. Furthermore, the executed payment of the Invoice attached to the Statement of Work is confirmation that these Terms have been accepted by the Customer.

If any terms of an SOW conflict with the terms of this Agreement, the terms of this Agreement shall take precedence.

The Statement of Work #1 for Custom eLearning Platform Planning & Setup contains those Services contemplated by this Agreement. We offer two additional services which are more fully detailed as follows: Custom-tailored High-Performance Hosting for eLearning Platforms, as detailed in Statement of Work #2 and eLearning Platform Maintenance and Management, as detailed in Statement of Work #3.  Only those services for which an executed Statement of Work referenced hereto (or alternatively if entered into at some later time) shall be binding on the Parties.

3.3 We will provide the Services in accordance with the terms of the Agreement and the SOW & SLA (Insert both URLs to both SLAs). You acknowledge that we may engage third parties to provide or enable elements of the Services, provided that we are responsible to you for the performance of such third parties as if we performed the Services ourselves.

You shall use the Services solely for the intended purpose in accordance with the Agreement, including the AUP, and provide us with all information, assistance, and materials reasonably required for our ongoing provision of the Services.

3.4 Professional Services. CodeisCode will provide the consulting, implementation, training, integration, enhancement, configuration, and other services (if any) that are identified on Schedule A, attached hereto, and on any Order (collectively, “Professional Services”). If the Customer requests, CodeisCode may provide additional Professional Services to the Company pursuant to the terms of one or more written Statements of Work (each an “SOW”), which will either be attached to and become part of the Agreement or incorporated into an Order as part of the Agreement. Each SOW will include, at a minimum, (i) a description of the Professional Services; (ii) the then estimated project completion dates; (iii) the fees, costs, and expenses payable to CodeisCode; and (iv) the payment schedule; 

3.5 The Company will provide to Codeiscode’s assigned representative written confirmation of receipt and acceptance of the Professional Services rendered upon completion of the project in accordance with the criteria established in the applicable SOW (including, if applicable, any testing and acceptance criteria). Upon completion of the project in accordance with such criteria, all Professional Services will be deemed delivered, and CodeisCode will not be obligated to deliver further Services thereunder. 

3.6 In the event that any payment by the Company to CodeisCode is more than thirty (30) days past due (and the same is not reasonably in dispute) in connection with Professional Services, CodeisCode will have the option to cease providing any and all Services under the relevant SOW until such past due payment is received. 

3.7 We will provide support to you according to the level of service you subscribed to through the standard means we make available to our customers (e.g. knowledgebase, forums, chat, ticket, direct line). Authorized Users seeking support must have a basic understanding of the systems and technology related to the Services.

3.8 The scope of Services provided under the Agreement may be amended by any reasonable means showing mutual agreement between the Parties including click-through terms, email, support ticket, or your selections in our Portal or Website. Any associated fees will be clearly and conspicuously provided to you before you agree to any such change.

3.9 From time to time, we may provide replacements for certain components of the Services or cease supporting them altogether. No such replacement or end of life shall constitute a breach of the Agreement.

3.10 If you request or utilize any Beta Services or Software, such Beta Services or Beta Software shall be provided on an AS-IS basis with all faults. No SOW, indemnity, representation, or warranty shall apply to Beta Services or Beta Software. We reserve the right to terminate the Beta Services or Software at any time and make no representation that Beta Services or Beta Software will be released into production. 

3.11 Changes. If Customer wishes to implement any changes or revisions that deviate in any material respect from the Specifications set out in any SOW, Customer shall submit a Change Request to Provider.  

Provider shall review the Change Request and submit to Customer a Change Request Proposal. If Customer accepts Provider’s Change Request Proposal, the parties shall enter into a Change Order.  

Provider shall not be responsible for any delays caused by the evaluation and completion of a Change Order, and any such delays shall not be considered a breach of Provider’s obligations under this Agreement.

Notwithstanding anything to the contrary herein, Customer shall have seven (7) days to accept or reject the Change Request. After such time, the Change Request shall be considered rejected.

3.12 Acceptance.  After Provider’s delivery of a Deliverable to Customer, Customer shall have up to ten (10) calendar days (or such other period as specified in the applicable SOW) to review, test, or evaluate the Deliverable. During these ten (10) days Customer shall accept the Deliverable by notifying Provider in writing or, alternatively, shall provide Provider with written notice of material discrepancies between the Deliverable as delivered and the features and/or functionality of the Deliverable as described in the SOW and Specifications, and request that Provider correct such discrepancies. 

Acceptance of Deliverables shall occur upon the earlier of (i) receipt of written acceptance from Customer, or (i) substantial conformance of the Deliverables with the Specifications, in Customer’s sole discretion, in the event of an issued update to the Deliverable, or (iii) failure of Customer to notify Provider of discrepancies by the end of the Acceptance Period, or (iv) use by Customer of a Deliverable in a production environment.

3.13 Availability. The Customer or a representative of the customer must at all times during the service delivery be available to respond to questions and to complete tasks and for general feedback. Customer or a representative of the Customer must respond to all inquiries of provider within a 24-hour timeframe max. 

If the Customer is repeatedly unavailable within the above-mentioned timeframe and within the previously agreed upon service delivery time period as outlined in the Statement of Work or if the Customer does not respond to questions, emails or is not available for general feedback then Provider cannot be held responsible for the project not to be completed in time.

In such a scenario in which the Customer is repeatedly unresponsive Provider can unilaterally cancel this agreement and Provider cannot be held responsible for the project to be not completed and Provider is furthermore not obliged to reimburse or refund the Customer.

3.14 Additional Charges If a reported problem (or if the Customer otherwise requests assistance) is an Exclusion, CodeisCode will notify the Customer, as promptly as possible, to that effect and reserves the right, upon the Customer’s confirmation, to nevertheless move forward with the attempted resolution of such problem, and to charge the Customer at CodeisCode’s then-current standard hourly rates for all associated work, for which the Customer agrees to pay CodeisCode promptly upon receiving an invoice; provided, however, that CodeisCode shall inform the Customer in advance of the possible incurrence of any such fees and the Customer shall have pre-approved the same, otherwise such charges shall not be payable.

4. Authorized Users

4.1 You may designate a number of Authorized Users for the purpose of receiving support and making changes to your account. You are responsible for managing your Authorized Users and keeping them up-to-date. You authorize us to provide all applicable support and account information to your Authorized Users and to make modifications to the Services at their direction. The number of authorized users may be limited by the type of Service Level you subscribed to.

4.2 You may only add, modify, or remove Authorized Users by directly communicating with your Project Manager assigned to you by Provider. We will not do so on your behalf, and we will only provide support, assistance, and information to your Authorized Users whose identity has been verified. Notwithstanding the foregoing, if you pay for the Services with a credit or debit card, we may remove that card as a payment method at the request of any individual who is able to provide reasonably satisfactory evidence that he or she is the named individual on such credit or debit card.

4.3 You will require your Authorized Users to abide by the terms of the Agreement, and you acknowledge and agree that you are fully responsible for the actions and omissions of your Authorized Users and for all costs, overages, or other liabilities incurred through your account except to the sole extent that any such use or liability is the result of our breach of the Agreement. 

An Authorized User, within the scope of permissions or access granted to such user, may make changes to the Services, and you agree to pay any fees associated with such changes. You shall promptly notify us in the event that you become aware of any violation of the terms of the Agreement or any unauthorized use of the accounts of you or your Authorized Users.

4.4 The role assigned to you, the Customer, on your Platform or to any Authorized User you specify is that of “eLearnCommerce Platform Manager”, additionally the following roles are available: eLearnCommerce Student Supervisor, eLearnCommerce Content Manager, eLearnCommerce Audience Manager, eLearnCommerce Individual Content Manager, eLearnCommerce Student, eLearnCommerce Individual Courses Manager, eLearnCommerce Helpdesk Agent.

5. Right to use 

5.1 Right to Use. Subject to, and in accordance with the terms and conditions of this Agreement, Provider hereby grants to Customer during the Term of this Agreement,  the right to use the Software for access by Customer and Customer’s Authorized Users. For the avoidance of doubt, no license to the Software or Services is granted by this Agreement.

5.2 Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to Provider; (g) remove or obscure any proprietary, attribution to Provider (including any links thereto); (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing. Transfer, migrate or use the Software on a third-party hosting service that is not under the control and ownership of CodeisCode Marketing & Consulting LLC.

5.3 You may not claim intellectual or exclusive ownership rights to any of our products. All products are property of CodeisCode Marketing & Consulting LLC. They are provided “as is” without warranty of any kind, expressed or implied. We shall not be liable for any damages, including but not limited to, direct, indirect, special, incidental, or consequential damages or losses that occur out of the use or inability to use our products.

5.4 You must label your Platform with “Powered by eLearnCommerce” and the eLearnCommerce logo, and cannot mislead users as to the features of your eLearning Platform or your relationship with eLearnCommerce (for example, you cannot imply that we endorse or sponsor your Platform and no third-party developer its allowed to mislead users by adding his references to the eLearning Platform).

You can add the “Powered by eLearnCommerce” reference into the footer near the Copyright reference. The font size of the text must be between 10 and 14 pixels. We can choose to limit, suspend or terminate your access, account, or license at any time if you violate these and any of the rules mentioned in these terms of service.
How to label your Platform:

Download the guide here

The aforementioned attribution clause applies to Legacy License Owners as well.

6. Intellectual Property Rights 

6.1 Intellectual Property.  “Intellectual Property” means any patent, copyright, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, industrial design, any registrations thereof and pending applications, therefore (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.

6.2 Provider Intellectual Property.  The Parties acknowledge and agree that Provider may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how, or other intellectual property owned by Provider or its licensors and Provider may also create additional intellectual property, in the performance of the Services (all of the foregoing, the “Provider Intellectual Property”). The provider is permitted to use the Platform built for Beneficiary as a use case and showcase it in Advertising and Marketing Materials.

Customer agrees that any and all proprietary rights to the Provider Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing the Services, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of Provider, free from any claim or retention of rights thereto on the part of Customer, and Customer hereby assigns to Provider any rights it may have in any of the foregoing. Provider agrees that if in the course of performing the Services, Provider incorporates into the Services any Provider Intellectual Property, Provider shall grant to the Customer the right to access and use such item as part of or in connection with the Services only for the purpose as contemplated by this Agreement.

6.3 Customer Intellectual Property. The Parties acknowledge and agree that all Intellectual Property of Customer used during the Term of this Agreement and incorporated into the Services, including proprietary information and trade secrets of Customer which are used in the Services (the “Customer Intellectual Property”) shall remain the sole and exclusive property of Customer. 

6.4 Ownership Rights for CodeisCode. All title, ownership rights, and Intellectual Property Rights in and to the CodeisCode Software and all CodeisCode Marks (and all Derivative Works and copies thereof) are and will remain owned by CodeisCode. The Customer acknowledges that the CodeisCode Software, in source code form, remains proprietary information of CodeisCode and that the source code is not licensed to the Customer by this Agreement or any Schedule or Order and will not be provided or escrowed by CodeisCode. CodeisCode will also retain all Intellectual Property Rights in any Professional Services or Additional Services unless the Parties agree that the same is intended to be transferred to the Company in connection with the performance of and payment therefor, as indicated in the applicable Order or SOW. 

6.5 Ownership Rights for Customer. All title, ownership rights, and Intellectual Property Rights in Company data and any other Materials that the Customer owns, and/or that the Customer or its End Users uploads to the Software Services, will remain owned by the Customer, or other third party(ies), as the case may be. 

7. Fees; Invoicing and Payment Terms 

7.1 You agree to pay the Fees beginning on the Effective Date and according to the payment terms set out in the Order. If no payment terms are specified, Fees shall be due in full in advance, including for usage, overage, or custom development fees which can be invoiced in arrears or on an Adhoc one-time basis.

If the Order sets any limit on your use of Services (such as a number of visitors, content, support hours, or server bandwidth) and that limit is exceeded, you will be responsible for the applicable overages. You agree to pay any applicable taxes (excluding taxes on our income) which we are required to collect unless you provide us with a valid tax exemption certificate. 

If you elect to make any payment via wire or credit transfer, then you are responsible for any applicable transfer fees. Any applicable overages, taxes, or transfer fees will be added to the Fees. Fees applicable to any Renewal Term will be at our then-current rates, provided that we have notified you of any applicable increase prior to the date by which you may opt-out of the renewal. Fees are payable in the currency specified in the Order and are not refundable except as expressly stated herein.

7.2 You agree to the issue and acceptance of invoices in electronic format. We will invoice you immediately upon execution or prior to the execution of the Order and on each renewal date thereafter. Invoices will be sent to the billing contact you designate in the Order when you create an account with the Provider.

If you elect to pay via credit or debit card, we will charge the provided credit or debit card immediately upon account activation and on each renewal date thereafter, up to one week prior to the due date. If you elect to pay by any other method, payments are due 30 days from your receipt of the applicable invoice.

7.3 In consideration of the Services to be provided by Provider to Customer hereunder, Customer shall pay to Provider the amounts specifically set out in each certain Statement of Work or Order (the “Fees”).  You agree to pay the Fees beginning on the Effective Date and according to the payment terms set out in the Order. If no payment terms are specified, Fees shall be due in full in advance, except for usage or overage fees which are invoiced monthly in arrears.  

7.4 Except as may be stated in a Statement of Work, Order, Offer, Invoice or otherwise specified on the website, Provider shall invoice Customer on a monthly basis depending on the date Customer has created the account with Provider. If not Invoices shall be due and payable within fifteen (10) days of issuance. Except as provided herein, any amounts not paid by Customer when due to Provider shall be subject to interest charges, 

If you are overdue on any Fees, we may: (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, (ii) suspend the provision of the Services, and (iii) terminate the Agreement in accordance with Section 10 below. You will be responsible for any charges associated with our collection efforts related to unpaid Fees.

7.5 Customer shall have no right of set-off and no fees paid shall be refundable under any circumstances. If an invoice is not paid within fifteen (10) days of the due date, and upon notice of a payment delinquency notice issued by Provider and not paid by Provider within ten (10) days Provider may, in its sole discretion, pause all work under this Agreement until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Provider’s obligations under this Agreement, or terminate this Agreement in accordance with paragraph 10 herein.

7.6 Reimbursable Expenses.  Customer shall reimburse Provider for out of pocket costs and expenses incurred by Provider in performing the Services under this Agreement, subject to written prior approval from Customer. 

7.7 Taxes. Customer shall be solely responsible for payment of any taxes that may become due as a result of entering into this Agreement, including, but not limited to, any applicable sales or use taxes, value-added taxes, goods and services taxes, intangible taxes, and property taxes, but excluding taxes based on income to Provider.

7.8 It is your responsibility to maintain accurate and up-to-date billing details and ensure the Fees are paid by the due date. If you fail to maintain accurate and up-to-date billing details, your account may be suspended until such details are provided. You will be responsible for any charges associated with our collection efforts related to unpaid Fees.

8. Use of Website and Services. 

8.1 The Customer shall not, and shall not knowingly permit others, in using the CodeisCode website, CodeisCode Software or Software Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or CodeisCode, or interfere with another party’s use of the Software Services; (ii) publish, ship, distribute or disseminate any harmful, infringing, fraudulent, tortious, or unlawful material or information (including any unsolicited commercial communications); (iii) misrepresent, or in any other way falsely identify, the Customer’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Services; (iv) knowingly transmit or upload any material through the Software Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing CodeisCode’s, or any other person’s or entity’s, network, computer system, or other equipment; (v) interfere with or disrupt the Software Services, networks or servers connected to the CodeisCode systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software Services; (vi) attempt to gain unauthorized access to the Software Services, other CodeisCode customers’ computer systems or networks using the Software Services through any means; (vii) copy, modify or create derivative works or improvements of the Services or CodeisCode Software; (viii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software Services or CodeisCode Software, in whole or in part; (ix) bypass or breach any security device or protection used by the Software Services or CodeisCode Software or access or use the Software Services or CodeisCode Software other than through the use of then valid access credentials; (x) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property Rights notices from any Services or CodeisCode Software; or (xi) access or use the Services or CodeisCode Software for purposes of the development, provision or use of a competing software service or product. 

8.2 CodeisCode has no obligation to monitor the Customer’s use of the CodeisCode Software and Software Services; however, CodeisCode reserves the right, upon confirmation of material non-compliance with the terms of the Agreement, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms of the Agreement, and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. 

9. Non-Disclosure; Confidentiality and Data Protection 

9.1 Disclosure. Each Party may disclose to the other Party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Confidential Information” means information, that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law); the “Disclosing Party” refers to the Party disclosing Confidential Information hereunder, whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents; and “Recipient” refers to the Party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents. 

9.2 Requirement of Confidentiality. The Recipient agrees to hold all Confidential Information disclosed to the Recipient by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any third party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement. 

9.3 The Customer acknowledges that the CodeisCode Software and Documentation, as well as all pricing aspects of Orders and SOWs issued in connection with this Agreement, are the Confidential Information of CodeisCode. CodeisCode acknowledges that all data input by the Company or End-Users into the CodeisCode Software is the Confidential Information of the Company. 

9.4 With regard to all Confidential Information, the obligations in this Section 9 shall continue for the Term of the Agreement and for a period of three (5) years thereafter; provided, however, that, with respect to any Confidential Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret. 

9.5 The foregoing obligations shall not apply if and to the extent that: (i) the Recipient establishes that the information communicated was publicly known at the time of the Recipient’s receipt or has become publicly known other than by a breach of this Agreement; (ii) prior to disclosure hereunder was already in the Recipient’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to any disclosure hereunder, the information is obtained by the Recipient on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if the Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Recipient may disclose the requested Confidential Information; provided, however, that, the Recipient shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Recipient is required to disclose. 

9.6 Return of Materials. Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Recipient shall promptly destroy or deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information and any notes, extracts, or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Recipient shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.

9.7 Data Use. The Customer agrees that data derived by CodeisCode from CodeisCode’s performance of the Services or input into the CodeisCode Software by use of the Software Services may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided that such analysis shall be performed solely by CodeisCode and such analysis shall be performed only in conjunction with data derived by CodeisCode from CodeisCode’s performance of services for other customers, input by other CodeisCode customers or obtained from third-party data sources. The results of such analysis (“De-identified Data”) may be used by CodeisCode for any lawful internal purpose, including determining future hardware and communications needs for CodeisCode systems and determining trends associated with warehouse use, operation, and efficacy, but shall not be sold to any third-party or used for any other commercial purpose. Notwithstanding anything contained in this Agreement to the contrary, De-identified Data shall not contain (i) any Confidential Information of the Customer, (ii) any information that identifies or can be reasonably used to identify any End Users or other individual person, (iii) any information that identifies or can be reasonably used to identify the Customer or its affiliates, suppliers, or vendors, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of the Customer. Further, such De-identified Data shall not be subject to or susceptible to any re-identification, and, upon request, Docebo shall certify the same to the Customer.

10. Term and Termination

10.1 In order to prevent any unintended Service interruptions, this Agreement will automatically renew, but you may still terminate the Agreement at any time in accordance with Paragraph 10.3. The Agreement will renew for successive Renewal Terms each equal to the immediately preceding term unless a Party provides notification of its intent not to renew no later than 30 days prior to the expiration of the then-current term.

10.2 Term. Unless earlier terminated pursuant to this Section, this Agreement shall begin on the Effective Date and continue for three (3) years (the “Initial Term”), after which, this Agreement will auto-renew for additional one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”).

10.3 Notice of Non-Renewal. Unless otherwise specified in the Order, to prevent renewal of the Agreement, either party must give written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be. 

10.4 Termination for Convenience. Either party may terminate this Agreement by providing the non-terminating party no less than ninety (90) days’ prior written notice to a Renewal Period of its intent to not renew.

10.5 Termination for Non-Payment.  If payment of any fees, or any other amounts due to Provider under this Agreement, are not paid within fifteen (15) days of Customer’s receipt of the invoice and Customer fails to cure such delinquency within ten  (10) days after receipt of notice of such delinquency, then Provider may, in its sole discretion, immediately terminate this Agreement on written notice to Customer. This paragraph contains the parties’ entire notice and cure obligations with respect to non-payment of fees and invoices.

10.6 Termination for Cause. This Agreement may be terminated by a Party on thirty (30) days’ written notice to the non-terminating party if the non-terminating party commits a material breach of this Agreement unless the defaulting party cures its alleged breach (if curable) during the Cure Period.

10.7 Outstanding Fees. Termination of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Provider prior to the effective date of termination.

10.8 We may terminate the Agreement prior to the end of the Term: (i) if you materially breach the Agreement and fail to cure such breach within 10 days of our notice to you; (ii) if we reasonably believe that your use of the Services endangers or negatively affects our network or systems, violates the law, or interferes with our ability to provide services to our other customers; (iii) if you abuse, harass, or threaten any of our employees; (iv) for convenience if we provide you with at least 30 days notice; or (v) for any other cause stated herein. If we terminate for convenience, we will provide you with a prorated refund of any unused Fees paid annually in advance for Services beyond the date of termination and adjusted for any amounts which you may owe.

10.9 Once your account has been terminated, you will no longer be able to receive support or access your Service Management Area, and we will not be able to assist you with any tasks or any other technical or service-related tasks. It is your responsibility to maintain offline backups of your site at all times.

11. Proprietary Rights

11.1 Customer Content is and remains your exclusive property, and we claim no rights whatsoever in the Customer Content except to the extent explicitly granted herein. For the Term of the Agreement, you hereby grant to us, our affiliates, providers of Third-Party Services, and subcontractors a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Customer Content (in whole or in part) solely and strictly to the extent required to provide the Services to you under the terms of the Agreement.

11.2 We and our licensors own and shall continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. performance data), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant any other licenses, express or implied, to any of our intellectual property including software, services, or products.

11.3 We may solicit and you or your Authorized Users may provide feedback about the Services. If you or your Authorized Users provide feedback, you agree that such feedback is provided freely. Except to the limited extent such feedback contains any of your Confidential Information, we are free to use and disclose such feedback for any purpose without accounting to you or any other person, and we shall own all right, title, and interest in and to such feedback along with any changes, modifications, or upgrades we make to our current products or services and any new products or services that we develop using the feedback you or your Authorized Users provide.

12. Confidential Information 

12.1 “Confidential Information” under this agreement shall mean any and all information, proprietary and/or maintained in confidence by the Disclosing Party, including without limitation, any information relating to the Disclosing Party’s ideas, concepts, techniques, inventions, know how (including patents, copyrights, and trade secrets), sketches, drawings, models, processes, materials, operations, algorithms, software programs, source code, experimental work, research and development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, vendor lists, contact lists, business forecasts, sales and merchandising, marketing plans,  and information, disclosed by Disclosing Party or obtained by Receiving Party either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of product demonstrations which is designated or described by the Disclosing Party as “Confidential,” “Proprietary” or some similar designation, and/or which should reasonably be understood by the Receiving Party, or any of Receiving Party’s employees, directors, representatives, shareholders, or agents (collectively the “Receiving Party Representatives”) because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary to the Disclosing Party, regardless of whether obtained before, on or after the date of this agreement. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to the Receiving Party on behalf of the Disclosing Party. pursuant or otherwise relating to this Agreement.

12.2 Non-disclosure and Non-use. Receiving Party agrees to use the Confidential Information for the sole purpose contemplated by this Agreement. Receiving Party agrees that neither it nor any of Receiving Party Representatives will use for Receiving Party’s own benefit or in any way disclose any Confidential Information to any person, firm, or business, except for the sole purpose set forth in this Agreement or for any other purpose the Disclosing Party may hereafter authorize in writing.  Receiving Party shall treat all Confidential Information with the same degree of care as Receiving Party accords to Receiving Party’s own Confidential Information but in no case less than reasonable care. 

Receiving Party agrees to disclose Confidential Information only to those of such Receiving Party’s employees who need to know such information, determined in Receiving Party’s sole discretion, and Receiving Party certifies that such Receiving Party’s employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such Receiving Party under this Agreement, such agreement to be provided to Disclosing Party upon request.  

Receiving Party shall not make any copies of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent. Receiving Party shall not reverse engineer, disassemble or decompile any materials or objects which embody the Disclosing Party’s Confidential Information. Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Confidential Information. Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized use or disclosure of Confidential Information.

12.3 Exceptions. The obligations of Receiving Party with respect to any portion of the Confidential Information shall not apply to such portion that Receiving Party can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party through no fault of Receiving Party, (b) was rightfully in Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party, (c) was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party, or (d) is requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. 

In the event  Receiving Party is required to disclose any Confidential Information in accordance with this subsection, Receiving Party will notify Disclosing Party promptly so that Disclosing Party may seek a protective order or another appropriate remedy. In the event that no such protective order is obtained before such Confidential Information or other information is required to be disclosed, the Receiving Party or its applicable representative, as the case may be, will furnish only that portion of such Confidential Information or other information which it is advised by its legal advisers is required to be disclosed.  In addition, to the extent legally permissible, Receiving Party will provide Disclosing Party, in advance of any such disclosure, with copies of any such Confidential Information or other information that Receiving Party intends to disclose and will reasonably cooperate with Disclosing Party to the extent Disclosing Party may seek to limit such disclosure.

12.4 Return of Confidential Information and Other Materials. Promptly upon request from the Disclosing Party, the Receiving Party shall, at Disclosing Party’s option, redeliver to the Disclosing Party or destroy all Confidential Information and any other materials containing, prepared on the basis of, or reflecting any information in, the Confidential Information, including without limitation, all reports, analyses, compilations, studies and other materials containing or based on the Confidential Information, and Receiving Party will not retain any copies or other reproductions of such Confidential Information and/or materials. Upon the request of the Disclosing Party, any such destruction shall be certified in writing by the Receiving Party. Notwithstanding the foregoing, the Receiving Party may retain such of its documents as required to comply with mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation. 

12.5 No Warranties. All confidential information is provided “as is” and Disclosing Party makes no warranties, express, implied, or otherwise, regarding its accuracy, completeness, or performance or fitness for any purpose.

12.6 Term of Confidentiality. The obligations of Receiving Party hereunder as to any Confidential Information shall be effective during the Term of this Agreement and for a period of five (5) years after the expiration or earlier termination hereof or until such information is no longer a trade secret of the Disclosing Party, whichever occurs later in time.

12.7 Damages and Injunctive Relief. In acknowledging the unique and proprietary nature of the Confidential Information, Receiving Party acknowledges and agrees that monetary damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party and that Disclosing Party may suffer great and irreparable injury as a consequence of such breach.  Consequently, Disclosing Party shall be entitled to seek equitable relief, including injunction, court order, and/or specific performance, as a remedy for such breach and/or to protect the confidentiality of its Confidential Information and to halt any unauthorized disclosure thereof.  Such remedies shall not be deemed to be exclusive remedies for a breach by the Receiving Party but shall be in addition to any and all other remedies provided hereunder or available at law or equity to the Disclosing Party.

12.8 Customer Content is and remains your exclusive property, and we claim no rights whatsoever in the Customer Content except to the extent explicitly granted herein. For the Term of the Agreement, you hereby grant to us, our affiliates, providers of Third-Party Services, and subcontractors a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Customer Content (in whole or in part) solely and strictly to the extent required to provide the Services to you under the terms of the Agreement.

12.9 We and our licensors own and shall continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. performance data), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant any other licenses, express or implied, to any of our intellectual property including software, services, or products.

12.10 We may solicit and you or your Authorized Users may provide feedback about the Services. If you or your Authorized Users provide feedback, you agree that such feedback is provided freely. Except to the limited extent such feedback contains any of your Confidential Information, we are free to use and disclose such feedback for any purpose without accounting to you or any other person, and we shall own all right, title, and interest in and to such feedback along with any changes, modifications, or upgrades we make to our current products or services and any new products or services that we develop using the feedback you or your Authorized Users provide.

13. Security and Data Privacy

13.1 We will maintain commercially reasonable technical and operational measures designed to protect our internal networks and software and systems from malicious activity and provide for the security and integrity thereof. You acknowledge that we are not responsible for any loss or harm suffered by you resulting from a security incident. You are responsible for determining whether the Services meet applicable regulatory standards and otherwise comply with your own security requirements. You agree to configure your use of the Services in such a way as to maintain the security of the Services and our network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).

13.2 Should we determine that our network or Software Systems have been accessed in an unauthorized manner and that unauthorized access impacts your Services, we agree to notify you as soon as reasonably practicable after we have investigated the unauthorized access and fulfilled our legal obligations. Likewise, you agree to notify us should you identify unauthorized access to the Services.

13.3 We will adhere to the Privacy Policy. Where applicable under the data privacy laws of the European Union and its member states, we are the data controller for the personal data belonging to you and your Authorized Users which is provided or made available to us through the Service Management Portal. For all other personal data collected by you from your employees, customers, or end-users or otherwise stored, transferred or processed by any part of the Services, we are the data processor. Where we are the data processor, we will use such personal data only as instructed by you or required by law, and not for any other purpose. In all cases, the Parties agree to comply with the terms and obligations of the DPA throughout the term of the Agreement.

13.4 PCI Standards.  If you use the eLearnCommerce in combination with specific components to accept payment card transactions, you must comply with the Payment Card Industry Data Security Standards (PCI-DSS) to the extent they are applicable to your business (the “PCI Standards”). eLearnCommerce provides tools to simplify your compliance with the PCI Standards, but it is your responsibility to ensure that your business is compliant. The specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Product and the components that are used or not used on your Platform. Speak with your Platform Admin to further clarify which components are being used on your specific Platform.

13.5 Cardholder Data.  eLearnCommerce does not have access to, collect, transmit, store, or process any Cardholder Data on your behalf.  We have partnered with payment providers Stripe and PayPal regarding all End-User payments and so that our customers may achieve their compliance obligations with PCI DSS. It is your sole responsibility as the owner of your site to activate and maintain these accounts.  If you do not wish to keep either of the payment accounts active, it is your responsibility to deactivate them.  “Cardholder Data” is defined as a cardholder’s primary account number (PAN), and where a full unmasked card number is present, any of the following elements: cardholder name, expiration date, and/or service code. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROHIBITED FROM COLLECTING OR ENTERING CARDHOLDER DATA INTO ANY FORM OR DATA ENTRY FIELDS IN THE PRODUCT, EXCEPT INTO THOSE FIELDS INTENDED SOLELY FOR THAT PURPOSE (i.e. where eLearnCommerce explicitly enables such data to be entered into such fields). Appropriate fields are clearly marked with labels such as ‘Card number’ or by having a credit card icon precede them. Similarly, excluding payment forms, you must never collect or enter any “Sensitive Authentication Data”, as defined by the PCI Standards (including CVC or CVV2) into any fields in the Product. You assume all responsibility for any Cardholder Data entered into the Product in violation of these Terms.

14. Representations, Warrants, and Covenants

14.1 Customer represents, warrants, and covenants for Provider’s benefit alone that at all times during the Term: (i) Customer has the right, power, and authority to enter into and perform its obligations under this Agreement, (ii) Customer represents and warrants that it is a corporation duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which it conducts its business, (iii) the making and performance of this Agreement by Customer does and will not violate any agreement between it and any other person or entity; and (iv) Customer owns or shall obtain all right, title and interest in and to, or a full and sufficient right and authority to use any data, materials, information and other items or works that Customer provides to Provider in connection with this Agreement. Customer is responsible for, and Provider shall have no obligation or responsibility related to, ensuring that its systems and production environment meets the hardware, software, and any other applicable system requirements for the Software as specified in the Documentation.

The customer shall respond to all requests for data information and other resources in a timely manner. If Customer fails to meet this covenant Provider may provide notice of its intent to cancel this Agreement and shall have the right to do so if the failure is not cured within fifteen (15) days.

14.2 Provider represents, warrants and covenants for Customer’s benefit alone that at all times during the Term: (i) Provider has the right, power and authority to enter into and perform its obligations under this Agreement, (ii) Provider represents and warrants that it is a corporation duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which it conducts its business, (iii) the making and performance of this Agreement by Provider does and will not violate any agreement between it and any other person or entity; and (iv) Provider owns or shall obtain all right, title and interest in and to, or a full and sufficient right and authority to use any data, materials, information and other items or works that Provider provides to Customer in connection with this Agreement;  (v) Provider’s grant of rights under this Agreement nor its performance of any obligations under this Agreement does or will violate the terms of any agreement existing between Provider and any other person or entity. Notwithstanding anything to the contrary herein and for the avoidance of doubt, provider warrants that all Services provided hereunder will be performed in a good and workmanlike manner and in accordance with the specifications in this agreement.

15. Indemnification 

15.1 Each party (the “Indemnifying Party”) hereby agrees to defend, indemnify, and hold harmless the other party and its officers, directors, employees, representatives, assignees, and successors (collectively, the “Indemnified Party”) from and against all Claims (as defined in Section 17.3). The Indemnified Party shall provide prompt written notice to the Indemnifying Party of a Claim within ten (10) days after becoming aware of such Claim. The Indemnifying Party shall have the sole right to handle the defense with counsel of its selection except that it shall communicate all settlement offers to the Indemnified Party and shall not settle any such claim without the consent of Indemnified Party unless a full release of the Indemnified Party is obtained from the settling third-party claimant.  

15.2 The Indemnified Party shall have the right, but not the obligation, to participate in any lawsuit at its own expense using counsel of its own selection provided that such participation does not interfere or conflict with the Indemnifying Party’s defense of the Claim.  If a claim is made, or Provider reasonably believes that a Claim is likely to occur, based on an assertion that the Software infringes the intellectual property rights or constitutes misappropriation of the trade secrets of a third party, in addition to the indemnification obligation set forth herein, Provider shall: (i) procure for Customer the right to continue using the Software and the right to continued enjoyment of the rights granted pursuant to this Agreement; (ii) modify the Software to eliminate the alleged infringement (including disabling the challenged functionality) or replace it with a non-infringing product of equivalent functionality (and, if Provider does so, Customer will stop using the allegedly infringing functionality immediately) provided that such modification or replacement does not adversely affect Customer’s use as contemplated hereunder; or (iii) only if the foregoing cannot be reasonably accomplished, terminate the right to access and use the Software and refund any prepaid fees not earned by Provider.  

15.3 The provider has no obligation to indemnify or defend with respect to any actions, claims, proceedings, costs, or damages based on any modification of the Software by Customer, or that is based on Customer’s combination, operation, or use of the Software with any product, data or apparatus not expressly contemplated by this Agreement. THIS PARAGRAPH STATES EACH PARTY’S ENTIRE OBLIGATION AND LIABILITY TO THE OTHER WITH RESPECT TO ANY CLAIM AS STATED HEREIN.

16. Warranty Disclaimers


17. Limitation of Liability

17.1 Although we may perform regular backups of your site, eLearning Platform, and Customer Content (as described in the Order or Statement of Work and if Backup Services are included in your Service Package), we do not guarantee there will be no loss or corruption of data. 

Corrupt or invalid backup points may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. We will provide support to you and attempt to troubleshoot any known or discovered issues that may affect your backups, but you acknowledge that we have no liability related to the integrity of your backups or the failure to successfully restore your content to a usable state. You agree to maintain a complete and accurate copy of any Customer Content in a location independent of the Services.






18. Publicity

18.1 Publicity Rights. The provider may identify Customer as a customer of Provider in its promotional materials, subject to the approval of Customer not to be unreasonably withheld.

The Parties may disclose that they have entered into a business relationship and may include the name and logo of the other Party in lists of their respective customers or vendors (as the case may be), subject to any provided usage guidelines with respect to a Party’s trademarks and so long as neither Party mischaracterizes the nature of the actual relationship between them. Any other use of a Party’s name, logo, or other trademarks or service marks shall require prior written consent. Specifically, and without limiting the generality of the foregoing, neither Party may disclose or advertise any other details of the Agreement or use the name, logo, or trademarks of the other Party in connection with a product or service based upon or similar to a product or service that Party offers. Neither Party may hold itself out as a reseller or a partner of the other, or any other similar designation unless granted such license or authority under a separately executed agreement.

19. Dispute Resolution 

19.1 Arbitration. Any dispute, controversy, or claim arising out of or related in any way to this Agreement or any Services performed hereunder which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. The arbitration shall be conducted before a tribunal composed of three neutral arbitrators each of whom shall sign an oath agreeing to be bound by the code of ethics for arbitrators in commercial disputes promulgated by the AAA for the neutral arbitrator.

Each Party shall appoint an arbitrator who will in turn choose a third arbitrator. The arbitration shall take place in or near Wilmington, Delaware, except that the meeting of the Parties and the arbitration tribunal may be conducted virtually in accordance with the instructions of the tribunal. The decision of the tribunal shall be in writing with written findings of fact and shall be final and binding on the Parties. This Section 13 provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except as may be otherwise stated herein.

19.2 Both Parties agree that all disputes will be resolved by binding, individual arbitration under the American Arbitration Association’s rules. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. CodeisCode will pay all arbitration fees (excluding attorneys’ fees) for claims less than $5,000.

CodeisCode will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. You may opt-out of this agreement to arbitrate. If you do so, neither Party may require the other to participate in an arbitration proceeding. To opt-out, you must notify us in writing at the following address within 30 days of the date that you first became subject to this arbitration provision: CodeisCode Marketing and Consulting LLC att.: LEGAL – 427 N. Tatnall St. 19801 Wilmington DE – USA. You must include your account name, contact address, and a clear statement that you wish to opt-out of this arbitration agreement. If you choose to opt-out, or if this Section is found to be unenforceable for any reason, disputes will be resolved as provided in the Agreement. This Section will be interpreted in accordance with the Federal Arbitration Act.

19.3 Applicable Law, Venue.  This Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of law principles.  The parties agree that the United Nations Convention on Agreements for the International Sale of Goods shall not apply to this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. The Parties agree that the venue for any matter arising out of or pertaining to the enforcement of an arbitration decision or other matter not related to arbitration,  as related to this Agreement shall be held in the state and federal courts located in the State of Delaware. IN NO EVENT SHALL ANY CLAIM, ACTION, OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT BE INSTITUTED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.


19.5 Attorney Fees. In the event that any dispute between the Parties should result in litigation or arbitration, the prevailing party in such dispute shall be entitled to recover from the other Party all reasonable fees, costs, and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. 

Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law. For the purposes of this Section: (a) attorney fees shall include, without limitation, fees incurred in the following: (1) post-judgment motions, (2) contempt proceedings, (3) garnishment, levy, and debtor and third-party examinations, (4) discovery, and (5) bankruptcy litigation; and (b) “Prevailing Party” shall mean the Party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise.

20. General Provisions

20.1 Force Majeure.  Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of strikes, lock-outs or other labor disputes, riots, civil disturbance, actions or inaction of governmental authorities or suppliers, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, widespread power outage, nuclear disasters or default of a common carrier (each a “Force Majeure Event”). Lack of finances or a mere failure to have adequate and suitable equipment, material, labor forces, or other facilities available to perform shall not constitute a Force Majeure Event. 

Any party experiencing a Force Majeure Event shall give as prompt notice as is possible under the circumstances. In the case of such Force Majeure Event, the time for the performance required by a party under this Agreement will be extended by the length of any period during which performance is prevented by the Force Majeure Event. Furthermore, if such extension interferes with the other party’s ability to perform its obligations, then the time for the other party’s performance will also be extended.  Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds forty-five (45) Business Days, any party may terminate this Agreement effective upon ten (10) business days written notice to the other party.

20.2 Relationship of the Parties The relationship of the parties established by this Agreement is solely that of independent contractors, and nothing contained in this Agreement shall be construed to (a) give any party the power to direct and control the day to day activities of the other; or (b) constitute such parties as Customers, co-owners or otherwise as participants in a joint or common undertaking; or (c) make either party an agent of the other for any purpose whatsoever.  Neither party, nor their agents or employees, shall be deemed representatives of the other for any purpose, nor shall either party have the power or authority to act as agent or employee to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other. 

20.3 Entire Agreement.  The Agreement, and any Schedules, Exhibits, and Statements of Work thereto, constitutes the entire agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof; this Agreement supersedes any and all other agreements, either oral or in writing (including any interim agreements executed by the parties), between the parties hereto with respect to the subject matter hereof.  No change or modification of this Agreement shall be valid unless the same be in writing and signed by an officer of Customer and Provider, respectively.  

20.4 Notices. All notices required under this Agreement shall be made in writing and sent to a party at their address listed below unless either party notifies the other party in writing of a change of address in accordance with the provisions of this paragraph. Notices are deemed to be effective and invoices received on the earlier of: (i) the date the notice or invoice is actually delivered to the addressee, or (ii) on the date of guaranteed delivery if the notice or invoice is sent by a recognized express courier.

20.5 Assignment.  Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that Provider may assign this Agreement or an affiliate or in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which substantially all of the equity or assets of the business unit of Provider responsible for the performance of this Agreement are transferred.   

20.6 Severability. If any provision of this Agreement is held by a competent court to be invalid or unenforceable under applicable law, then such provision shall be severed from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so severed and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the severed provision as determined by the Parties or as determined by a court of competent jurisdiction.

20.7 Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant.  All waivers must be in writing and signed by the party waiving its rights.

20.8 Survival of Provisions. Sections [wait for final version], along with any other provisions of this Agreement, which by their nature survive termination and all accrued and unpaid obligations arising hereunder shall survive the expiration or termination of this Agreement for any reason.

20.9 Approvals and Similar Actions. Where agreement, approval, acceptance, consent, or similar action by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, unless specifically permitted by this Agreement.

20.10 Interpretation. The paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement for the purposes of construing or interpreting any provision hereof.  Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neutral gender.

20.11 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties.

20.12 Reasonable Efforts. Each Party shall use all reasonable efforts to take all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.

20.13 Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, 5 business days after being mailed to the designated address by first class mail. Notices to you shall be made to the address recorded in the User Portal or via electronic mail to an Authorized User. Notices to us should be delivered to CodeisCode Marketing and Consulting LLC att.: LEGAL – 427 N. Tatnall St. 19801 Wilmington DE – USA

20.14 Severability. Any provision in the Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or the Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the parties’ intent.

20.15 Survival. Any provision of the Agreement that contemplates performance or observance subsequent to termination or expiration of the Agreement (including, without limitation, confidentiality, limitation of liability, and indemnification) survive termination or expiration and continue in full force and effect.

20.16 Third-Party Beneficiaries; Relationships. There are no third-party beneficiaries to the Agreement. Nothing contained in the Agreement shall be deemed or construed as creating a joint venture or partnership between the Parties hereto. No Party is by virtue of the Agreement authorized as an agent, employee, or legal representative of any other party. Neither Party has the authority to make any representations, claims, or warranties of any kind on behalf of the other Party, nor on behalf of that Party’s affiliates, agents, subcontractors, licensors, or third-party suppliers

20.17 Waiver. If one party fails to exercise, or delays exercising, any right, remedy, or power set out in the Agreement, this shall not operate as a waiver of that right, remedy, or power, whether under the Agreement or at law or equity.

EACH PARTY REPRESENTS AND WARRANTS that it has authority to enter into this Agreement and lawfully make the representations contemplated hereunder.

Schedule A

Service Description; Support Services; Service Levels

1.: General Description

The “eLearnCommerce System” is a Learning Management and Community Management System and proprietary software as a service platform developed by and belonging to CodeisCode that can be used to create eLearning and Knowledge Delivery Platforms including related hardware and software (including APIs), third-party software, or systems, including all updates, modifications, and enhancement thereto.

Using the eLearnCommerce System requires a modern web browser, that supports cookies and JavaScript and an appropriate server environment.

2.: Support Services

It is possible to contact Support Services 24/7 using the Support Ticket Submission Form available within the ECA (eLearnCommerce Academy) platform. Please note that the timing of CodeisCode’s response will be in accordance with Service Level Targets specified below. 

CodeisCode shall provide to the Customer the Maintenance and Support Services specified in any applicable SOW or Order if any. The details related to each of the different Support Services are set forth below: 

 3.: Definitions

“Business Hours” are defined as the operating hours for the CodeisCode Support team, currently 9 AM-6 PM CEST & 9 AM – 6 PM Eastern Time, as applicable based on the Company’s billing address. 

“ETA” means the estimated time that the problem will be addressed, with mitigation procedures deployed. The Customer will be updated if ETA materially changes. 

“First Response” means the first interaction with the Company (via ticket) aimed at the diagnosis of the problem. The number of Business Hours or Days to first reply is calculated using the Business Hours of the agent assigned to the specific ticket/support request. 

“Incident” means an issue with CodeisCode identified by the Customer to Codeiscode, as categorized in the Severity Descriptions below. 

“Production Instance” means a CodeisCode instance that is tied to an active user subscription.

“Support Request” means any support ticket reporting an Incident to CodeisCode via an appropriate methodology of submission, as discussed herein. 

“Taking Charge” means the registration of the Incident, including assignment of the ticket number to the Customer and saving the request in the Support system.

4.: Severity Descriptions

Urgent – Critical production issue affecting all users, including system unavailability, with no workaround available.

High – Issue is persistent, affects many users, and/or impacts core functionality or results in significant performance degradation with no reasonable workaround available

Normal – Errors in functionality within the application, often accompanied by workarounds or affecting some but not all users.

Low – General inquiries on the use of the application; or cosmetic errors or incidents which otherwise do not require immediate attention; or rare errors that appear during unusual conditions or are otherwise unlikely in normal use; or errors that have a sustainable workaround. 

Service Level Targets for Self Service Plans

Severity                     First Response                    ETA

Urgent                          168 Business Hours            As promptly as commercially feasible
High                               None                                       As promptly as commercially feasible
Normal                          None                                       None
Low                                 None                                       None

Service Level Targets for Platform Care Plans (Bronze, Silver, Gold)

 Severity                     First Response                    ETA

Urgent                           72 Business Hours             Within 1st 7 days
High                               72 Business Hours             As promptly as commercially feasible
Normal                          None                                       None
Low                                 None                                       None

Service Level Targets for Platform Care Plans (Platinum, Centurion)

 Severity                     First Response                    ETA

Urgent                           Same Day                              As promptly as commercially feasible
High                               Same Day                              As promptly as commercially feasible
Normal                          Same Day                              As promptly as commercially feasible     
Low                                Same Day                               As promptly as commercially feasible       

Urgent applies only to issues submitted via the ECA Ticketing System and confirmed as Urgent by CodeisCode Support staff.  

5.: Support Requests / Incident Response Procedures

Support Requests

To receive these Support Services and for CodeisCode to be able to provide the applicable Service Levels, the Customer will reasonably cooperate with CodeisCode to resolve support Incidents. 

In service of the foregoing, the Customer agrees that it will have adequate technical expertise and knowledge of their configuration of the Production Instance and familiarity with CodeisCode’s Services to provide relevant information to assist CodeisCode to reproduce, troubleshoot, and resolve the Incident or issue identified by the Customer. 

The following information should be provided in any Support Request, at all times and as a minimum, to maximize CodeisCode’s ability to address Incidents.

Support Requests lacking this information will not be considered as part of any Service Level measuring report: 

(1)  A detailed description of the issue, with as much reasonable detail as can be provided with reference to the problem in a clear step-by-step format. 

(2)  The URL of the platform where the issue is occurring. 

(3)  The error message provided, and the exact steps necessary, if known, to reproduce the error. 

(4)  The user(s) that are affected by the issue. 

(5)  Any applicable screenshots or video captures. 

(6) All Technical Issue reporting best practices as outlined here: https://academy.elearncommerce.com/support/

6.: Customer’s General Responsibilities

With respect to Support Services and Incident management, the Customer will, to the extent that the same may be within its reasonable control, be responsible for: (a) reporting errors promptly; (b) providing sufficient information for CodeisCode to duplicate the error, assess the situation, and undertake any needed or appropriate corrective action; (c) otherwise following instructions or suggestions from CodeisCode regarding use, maintenance, upgrades, repairs, workarounds, or other related matters; and (d) designating two (2) members of its staff to serve as the Customer’s system administrators to contact CodeisCode with support issues. 

The Customer understands and acknowledges that CodeisCode’s successful response and provision of Helpdesk Services is subject to the Customer’s reasonable assistance and compliance, including: (i) at CodeisCode’s reasonable request, the Customer will provide CodeisCode with reasonable access to the Customer’s personnel and equipment, during normal Business Hours, to discuss and assess any problems or requests for assistance; and (ii) the Customer will document and promptly report to CodeisCode all material errors or malfunctions of the Software Services. It is the Customer’s responsibility to carry out procedures necessary at the Customer’s facilities for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from CodeisCode.

7.: Reproducing Errors

The Customer understands and acknowledges that generally speaking, CodeisCode must be able to reproduce errors in order to resolve them. Therefore, the Customer agrees to cooperate and work closely with CodeisCode to reproduce errors, including conducting diagnostic or troubleshooting activities, as the same may be reasonably requested and appropriate. Also, subject to the Customer’s approval on a case-by-case basis, End Users may be asked to provide remote access to their CodeisCode account and/or desktop for troubleshooting purposes.

8.: Exclusions

Issues that arise in the following categories are expressly stated to be outside of the scope of Support Services and support detailed above, and will have no Service Level Agreement applied to them: (i) Custom Cascading Stylesheets (CSS), (ii) support to third party authoring tools, (iii) support to third party system or platform integration, where the integration is not developed or managed by CodeisCode, (iv) support in troubleshooting of eLearning Content packages built with third-party authoring tools, and (v) custom-built authentication methods between CodeisCode and the Customer where such method is built by or on behalf of the Customer (other than by CodeisCode) and is not maintained by CodeisCode.

9.: Additional Charges

If a reported problem (or if the Customer otherwise requests assistance) is an Exclusion, CodeisCode will notify the Customer, as promptly as possible, to that effect and reserves the right, upon the Customer’s confirmation, to nevertheless move forward with the attempted resolution of such problem, and to charge the Customer at CodeisCode’s then-current standard hourly rates for all associated work, for which the Customer agrees to pay CodeisCode promptly upon receiving an invoice before said services will be performed; provided, however, that CodeisCode shall inform the Customer in advance of the possible incurrence of any such fees and the Customer shall have pre-approved the same, otherwise such charges shall not be payable. 

Schedule B

CodeisCode shall provide Customers which purchase Premium Implementation and Keys in Hand eLearning Platform Construction Services with an 8-week Onboarding Service following the time below.

Week 1-2: Project Kick-Off and Discovery (Planning)

CodeisCode Deliverable

– Personalized introduction to the Platform for Admins and Platform Managers during Live Call.
– Project Kickoff Call
          – Introduce Stakeholders
          – Contract Review
          – Roles and Responsibilities
          – Onboarding Project Expectations 
          – Project Layout and Organization
– Discovery Call
          – Review Client Use Cases
– Key Business Objectives Criteria Call
          Define and agree to Key Business Objectives Criteria for the project-specific to Company’s onboarding goals and business needs.
– Platform Architecture Call
          Coordination and introduction to Criteria and Guidelines for the project-specific planning of the Content and Sales process Architecture.
– Creation of an onboarding plan that details out the major tasks required by the Customer to set up the eLearning Platform as established by the Key Business Objectives Criteria.

Customer Deliverable

– Contribute to the development and documentation of Key Business Objectives Criteria based on business needs defined in the use cases.
– Attend calls
          – Kick-Off
          – Discovery
          – Key Business Objectives Criteria 
– Assemble a project team or project manager knowledgeable of the Company’s internal processes and empowered to make real-time decisions.
– Assign a project lead who shall function as the first point of contact with the Company regarding all onboarding matters and, who shall be primarily responsible for Company’s obligations with respect there to.
– Identify any other resources needed throughout the duration of the project such as technical resources
– Provide Sign Off on Critical Key Business Objectives

Week 3-6: Construction and Testing (Execution)

CodeisCode Deliverable

– Weekly project meetings to align on weekly tasks/goals, resolve any issues and provide any additional guidance (typically a duration of 60 minutes).
– Support and guidance via email and additional ad hoc meetings as required to enable the Customer’s team to effectively use the eLearnCommerce Platform and implement the use cases as previously defined.
– Provide product expertise and best practice configuration based on the client use case
– Review and advise the client on configuration and set up for the following items but not limited to:
             – Users
             – Courses, Learning Plans, and Catalogs
             – Branding and User Interface
             – Enrollment rules
             – Learning and Customer Journeys
             – Purchase Processes
             – Reports & Notifications
             – Certifications
             – Support the client during User Acceptance Tests

– Validate with the client that Key Business Objectives defined in the previous phase are met.

Customer Deliverable

– Participate in weekly meetings to align activities along with any questions, issues, and additional guidance needed 
– Complete assigned activities and training prior to each weekly call 
– Implement the use cases defined providing configuration of the platform for the following items but not limited to: 
             – Users
             – Courses, Learning Plans, and Catalogs
             – Branding and User Interface
             – Enrollment rules
             – Learning and Customer Journeys
             – Purchase Processes
             – Reports & Notifications
             – Certifications
             – Support CodeisCode during User Acceptance Tests
– Make real-time decisions regarding configuration during the project
– Validate completion of the Key Business Objectives defined in the previous phase

Week 7-8: Across the finish line and transition to customer Experience (Completion)

CodeisCode Deliverable

– Provide guidance to prepare for quality assurance testing and Soft Launch
– Support and guidance via weekly status, email, and additional ad hoc meetings to address feedback and resolve gaps identified during quality assurance testing and Soft Launch
– Onboarding completion survey
– Continued support and participation throughout the transition to the CodeisCode Customer Experience and eLearning Platform Development Team.

Customer Deliverable

– Complete a full cycle of quality assurance testing within the platform prior to Soft Launch (test scripts will be defined by the client based on their use case(s) 

– Conduct a Soft Launch with a subset of end users (learners, instructors, managers, etc…) to test the eLearnCommerce platform, content, integrations, and user provisioning flows prior to Go-Live 

– Participate in meetings to address soft launch feedback and resolve gaps identified
– Provide feedback to CodeisCode via the onboarding completion survey
– Attend the onboarding closure meeting 

Delivery Period: 8 calendar weeks from Project Kick-off. Kickoff must occur within 120 calendar days of contract acceptance as previously defined herein. 

In the event that Customer and/or CodeisCode fails to meet the foregoing obligations during the Delivery Period, through no fault of CodeisCode’s, then the parties shall work together in good faith to complete the onboarding on an extended schedule, taking into account the availability of CodeisCode’s resources. If the Customer requires CodeisCode to commit additional times and resources beyond those typically provided for in an 8 calendar week period, the Parties shall enter into a new SOW to provide for such additional hours as Customer requires, on terms and conditions to be negotiated by the Parties in good faith.