eLearning Brothers End User Terms of Service (Effective May 19, 2018)
Please read the terms of this agreement carefully as they form a contract between you and eLearning Brothers, LLC, a Utah limited liability company (“eLearning Brothers” or “ELB” or “Us” or “We”) that governs your access and use of: (i) eLearning Brothers’ hosted role-play training platform service (“Rehearsal”) provided by eLearning Brothers for online searching, storage, sharing, and processing of files, materials, data, text, audio, video, images or other content related to training and improvement of communication skills (collectively, “Content”); (ii) the eLearning Brothers websites or applications; (iv) any written or electronic use or features guides or other documentation provided or made available by eLearning Brothers (the “User Guides”); Support; and Professional Services (collectively the “Service(s)”).
BY EXECUTING A QUOTE, DELIVERY OF AN ORDER TO eLearning Brothers DOCUMENTING ACCEPTANCE OF A QUOTE, OR CONTINUING TO ACCESS, OPERATE, DOWNLOAD, INSTALL, REGISTER OR OTHERWISE USE THE SERVICES, OR BY CLICKING AN “I ACCEPT” OR “CONTINUE” OR SIMILAR BUTTON ASSOCIATED WITH THIS AGREEMENT, YOU (OR YOUR AUTHORIZED AGENT, IF APPLICABLE) EXPRESSLY AND EXPLICITLY ACKNOWLEDGE AND AGREE THAT THIS IS A BINDING AGREEMENT AND YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT AND ACCEPT ELEARNING BROTHERS’ OFFER TO USE, LICENSE, OR PURCHASE THE eLearning Brothers SERVICES PURSUANT TO THE TERMS HEREIN. IF YOU ARE AN EMPLOYEE OR OTHER REPRESENTATIVE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER COMPANY, YOU HEREBY REPRESENT AND WARRANT TO eLearning Brothers THAT YOU ARE (A) AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER COMPANY AND BIND THE CUSTOMER COMPANY TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT; AND (B) YOU ARE OVER THE AGE OF 18 YEARS OLD, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH CUSTOMER COMPANY ENTITY AND ITS AFFILIATES. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER COMPANY, DO NOT ACCEPT THE QUOTE, ISSUE AN ORDER, ACCESS, OPERATE, DOWNLOAD, INSTALL, REGISTER OR OTHERWISE USE THE eLearning Brothers SERVICES.
You may not access the Services if You are a direct competitor of eLearning Brothers, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Furthermore, you may not download, install, operate, or use any downloadable software created by or made available by eLearning Brothers, other than software made publicly available by eLearning Brothers, without Our prior written consent.
eLearning Brothers reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on Your use of the Services. We further reserve the right to add or remove functionality or features, and We may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Services at any time.
eLearning Brothers strongly recommends checking these Terms of Service periodically. If you disagree with the provisions of the Terms of Service at any time, your sole remedy is to terminate your use of the Services and inform us of such termination as described in the Terms of Service. Continued use of the Services constitutes your agreement to the Terms of Service in effect. eLearning Brothers will communicate changes to this Agreement by posting the new version of the Agreement on its website at www.rehearsal.com or other relevant locations, or as otherwise determined by eLearning Brothers in its sole discretion, or as otherwise required by applicable law, at which time such updated Agreement will be immediately effective.
Your use of the Services may be provided by eLearning Brothers pursuant to a separate manually or digitally-executed agreement. Those additional terms become part of your agreement with eLearning Brothers, if you use the Services. In the event of a conflict between such additional terms and the terms in this Agreement, the additional terms will control.
“Activation Date” means the date on which eLearning Brothers delivers to Customer Company a login name and temporary password to access and use the Hosted Services and the Third Party Services, and to provision User accounts.
“Addendum” means any addendum or other agreement in writing, in any case, agreed to by You or a Customer Company and eLearning Brothers pertaining to Services. (For the avoidance of doubt, the term “in writing” means, with respect to this definition only, a fee estimate for additional Services sent by e-mail by eLearning Brothers to You or a Customer Company and confirmed by an employee of the Customer Company.)
“Affiliate” shall mean any corporation, partnership, limited liability company or other entity (i) that owns, directly or indirectly through one or more other entities, 50% or more of the voting securities of such party, or (ii) in which such party or any entity described in (i), above, owns, directly or indirectly through one or more other entities, 50% or more of the voting securities.
“Agreement” means, collectively, the Order Form(s), the Terms of Service, and any Addendum.
“Applicable Law” means all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over eLearning Brothers, You, and Customer Company.
“Customer Company” means a company authorized by eLearning Brothers to provision Service accounts for use by its employees, contractors, agents, customers, or clients.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via a eLearning Brothers website, download location, application, or Hosted Service.
“Hosted Services” means the computer software programs owned, licensed, or operated by eLearning Brothers that Customer Company has subscribed to as set forth in an Order Form(s) or an Addendum; provided, however, that the term “Hosted Services” does not include any Third Party Service.
“Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Third Party Services” means any software, service, offering, product, or functionality that You or Customer Company uses (whether or not specifically subscribed for in an Order Form(s) or an Addendum), but which is provided by an independent third party.
“Order Form” means an ordering document, including an electronic form, specifying the Services to be provided hereunder that is entered into between Customer Company and eLearning Brothers or any of Our Affiliates, including any addenda and supplements thereto.
“Professional Services” means, collectively, those consulting services provided by eLearning Brothers under a Statement of Work or set forth on a Quote and Order Form, if applicable, which may consist of product-related services such as deployment, configuration, customization and installation, training, content generation, or incident response or other remedial services.
“Purchased Services” means Services that a Customer Company or a Customer Company Affiliate purchase under an Order Form.
“Quote” means a written purchase document generated by eLearning Brothers and accepted, executed (as required) and delivered by a Customer Company (or on Your behalf by a eLearning Brothers partner) to eLearning Brothers pursuant to which eLearning Brothers agrees to provide and Customer Company agrees to license specific eLearning Brothers Services.
“Subscription Model” means a eLearning Brothers pricing model, as indicated on an Order Form(s), which may apply individually with respect to any product or module constituting part of the Hosted Services or Third Party Services, or to a bundled group of products or modules, pursuant to which You or the Customer Company are assessed a fixed monthly or other periodic fee (which may change from time to time) for each period of use of such product or modules (or functionality contained therein).
“Subscription Term” means the period of time identified on each Quote, for which eLearning Brothers has committed to provide, and You or the Customer Company has committed to pay for, the eLearning Brothers Services (generally, twelve (12) months in duration).
“Support” means the support and maintenance services plan selected by the Customer Company, referenced on the Quote, and performed by eLearning Brothers related to the eLearning Brothers Services, if purchased from eLearning Brothers.
“Training Services” means training and other consulting services that may be provided by eLearning Brothers to You or a Customer Company, as identified on an Order Form(s) or an Addendum.
“Usage Data” means any and all aggregated and anonymized information reflecting the access or use of the eLearning Brothers Services by You or on behalf of Customer Company, including, but not limited to, visit-, session-, or stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing.
“User” means an individual who is authorized by a Customer Company to use a Service, and to whom Customer Company (or eLearning Brothers at Customer Company’s request) have supplied a user identification and password. Users may include, for example, Customer Company employees, consultants, contractors, agents, and third parties with which Customer Company transacts business.
“User Data” or “Your Data” means all information entered by User into the eLearning Brothers Platform. For the avoidance of doubt, the term “User Data” does not include any Usage Data.
- OUR RESPONSIBILITIES
2.1. Provision of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Customer Company Order Forms; (b) provide Our support for the Purchased Services to You in accordance with our obligations as indicated in the applicable Customer Company Order Forms; and (c) use commercially reasonable efforts to make any online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime; (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, Internet service provider failure, a denial of service attack, or any of the delays or hindrances identified in Section 12.8 (Force Majeure); and (iii) technical issues that cannot be identified as being under the control of eLearning Brothers.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
- USE OF SERVICES
3.1. Evaluation Period. This paragraph only applies if You receive access to the eLearning Brothers services for evaluation purposes or as part of Customer Company evaluation. Subject to the terms and conditions of this Agreement, eLearning Brothers (i) grants to you the right to access, use, and evaluate the eLearning Brothers Service (“Evaluation Offering”). You may use the Evaluation Offerings solely for Your internal evaluation purposes or for Customer Company’s internal evaluation purposes. Continued use of the eLearning Brothers Service after the evaluation period or any mutually agreed-to extension period requires payment of applicable fees. The ability to access or export Your Data from the eLearning Brothers Service will automatically cease to function at the end of the evaluation period unless extended.
3.2. Your Responsibilities. You will (a) be responsible for compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of non-eLearning Brothers applications with which You use Services.
3.3. Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service for the benefit of, anyone other than You or other Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) decompile, reverse engineer, disassemble, modify, or create derivative works of any Service.
3.4. Removal of Content and Non-eLearning Brothers Applications. If We are required by a third-party to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Our systems. If You do not take required action in accordance with the above, We may disable the applicable Content and/or Service until the potential violation is resolved.
3.5. Removal of User Data. If We are required by a third-party to remove User Data, or receive information that User Data provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such User Data from Our systems. If You do not take required action in accordance with the above, We may disable the applicable User Data and/or Service until the potential violation is resolved.
- THIRD-PARTY SERVICES
4.1. All transactions using Services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third-party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that We are not responsible for such content or services. We may also provide some content to you as part of the Services. However, eLearning Brothers is not an agent of any transacting party, nor or We a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third-party content you access with the Services, and you irrevocably waive any claim against Us with respect to such sites and third-party content. eLearning Brothers shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should You have any problems resulting from Your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of Your other service providers or any third-party services, We will not be responsible unless the problem was the direct result of our breaches.
- PROPRIETARY RIGHTS AND LICENSES
5.1. All Right Reserved. Except as expressly provided otherwise in this Agreement, title, ownership and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets and other intellectual property rights, in and to the Services and any authorized copies made by You remain with Us and Our licensors. The structure, organization, and code of the Services are valuable trade secrets of eLearning Brothers and its licensors and You shall keep such trade secrets confidential. The software used to deliver the Service is neither licensed nor sold.
5.2. Right to Access and Use the Services. Subject to the terms and conditions of this Agreement, you are granted a non-exclusive, non-transferable, limited right to access and use the Services as set forth in an Order Forms(s) or an Addendum. To the extent that the Services may be used to reproduce materials, such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce.
5.3. License by You to Host Your Data. You grant Us and Our Affiliates a worldwide, sublicensable, non-exclusive, transferable license to use, modify, adapt, reproduce, distribute, display and disclose Your Data as necessary for Us to provide the Services and fulfill Our obligations in accordance with the terms of this Agreement.
5.4. Your Feedback. Your suggestions, enhancement requests, recommendations, corrections, or other feedback provided by You, and their contents, (“Submissions”) will automatically become the property of eLearning Brothers, without any compensation to you. eLearning Brothers has no obligation to review your Submissions. eLearning Brothers may make, use, sell, or distribute your Submissions and their contents for any purpose in any way; eLearning Brothers has no obligation to keep your Submissions confidential.
5.5. Ownership of Historical Data. You acknowledge that at all times, eLearning Brothers will remain the owner of all de-identified, raw transactional data and any other de-identified data collected, generated or otherwise derived by eLearning Brothers in the course of providing Services, including Usage Data (“Historical Data”). To the extent it is commercially reasonable to do so, all retained Historical Data will be de-identified in a manner reasonably likely to prevent re-identification.
- REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
6.1. Representations. You represent that You have validly entered into this Agreement and have the legal power to do so.
6.2. Compliance with Laws. Each Party warrants and covenants that it is and shall remain in compliance with all applicable Laws relevant to the obligations under this Agreement.
6.3. Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UNDERSTAND OR AN UNDERSTAND AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SERVICES AND THEIR FUNCTIONALITY IN THE USER DOCUMENTATION OR ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU
- MUTUAL INDEMNIFICATION
7.1. General Indemnification. Both Parties shall indemnify, defend, and hold harmless the other Party and its Affiliates’ directors, officers, employees, contractors and agents (“Indemnified Parties”) from and against any and all claims, suits, proceedings, investigations or actions (collectively, “Claims”) and all resulting losses payable to third parties, settlements, judgments, awards, damages payable to third parties, and any and all legal, accounting and other fees, costs and expenses reasonably incurred in connection with investigating, mitigating or defending any such Claims (collectively, “Losses”), to the extent such Losses are sustained or incurred by any of them and arise out of: a) willful misconduct of the Party or its personnel; or b) any third party claim for negligence, gross negligence, or products liability caused by the actions or inactions of those of the Party’s officers, employees, agents, and contractors; except to the extent caused by the negligence or willful misconduct of any of the Indemnified Parties.
7.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
7.3. Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.
7.4, Allocation of Risk. You acknowledge and agree that eLearning Brothers has entered into this Agreement and permitted You access to the eLearning Brothers Services in reliance upon the disclaimers of warranty and the limitations of liability in this Agreement, that the same reflect an allocation of risk between eLearning Brothers and You (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between eLearning Brothers and You. If you are subject to Applicable Laws that prohibit You from indemnifying eLearning Brothers as set forth herein or prohibit You from entering into the risk allocation arrangement set forth herein, then (a) the terms of such provisions of this Agreement shall apply to You only to the fullest extent permitted by Applicable Law, it being understood that You and eLearning Brothers each wish to enforce the provisions of this Agreement to the maximum extent permitted by Applicable Law; and (b) You must, within thirty (30) days of the your acceptance of these terms, notify eLearning Brothers via email (directed to firstname.lastname@example.org) to specifically identify the Applicable Laws that apply to You and the resulting modifications to the risk allocation and indemnification provisions of this Agreement as a result of the application of such Applicable Laws.
- LIMITATION OF LIABILITY
8.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU TO eLearning Brothers IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2. Exclusion of Consequential and Related Damages. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL eLearning Brothers BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF eLearning Brothers HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
- DATA PORTABILITY AND DELETION. eLearning Brothers recommends that You or the Customer Company you are associated with keep a copy of Your User Data in a place that can be accessed without access to the eLearning Brothers Service. Upon request by You, with authorization from Your associated Customer Company if applicable, made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Your Data to you or Your associated Customer Company, and may thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
- SURVIVING PROVISIONS. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive termination or expiration of this Agreement and continue in full force and effect.
- GENERAL PROVISIONS
11.1. Entire Agreement. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
11.2. Assignment. eLearning Brothers may assign this Agreement or any rights or obligations under the Agreement to a third party. You may not assign the Agreement or any rights or obligations hereunder without the prior written consent of eLearning Brothers. Any such assignment without the prior consent of eLearning Brothers shall be void. eLearning Brothers may use subcontractors to perform Services under this Agreement; provided, however, that such subcontracting shall not relieve eLearning Brothers from responsibility for performance of its duties hereunder. eLearning Brothers shall be responsible for all acts and omissions of its subcontractors hereunder and for the performance of all of its obligations under this Agreement irrespective of any subcontracting by eLearning Brothers hereunder.
11.3. Third-Party Beneficiaries. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization or corporation not a party hereto, and no such third party shall have any right or cause of action hereunder.
11.4. Waiver. No delay or omission by either party to exercise any right or power will impair any such right or power or be construed to be a waiver thereof. A waiver by any party of any of the covenants, conditions, or contracts to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or contract herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.
11.5. Controlling law and severability. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by the laws of the State of Nevada, U.S.A, without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this Agreement in any other jurisdiction.
11.6. Notice. Any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given to a party pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of (a) actual receipt, irrespective of the method of delivery, (b) on the delivery day following dispatch if sent by express mail (or similar next day air courier service), or (c) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to eLearning Brothers, Attn: Legal Department, 5475 Reno Corporate Drive #500, Reno, NV 89511.
11.7. Complete Agreement; Governing Language. This Agreement constitutes the entire agreement between the parties with respect to the use of the Services licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of any additional terms and conditions you are required to accept if you choose to use a Service, which will govern your use of that Service and any content you purchase through that Service. No amendment to or modification of this Agreement will be binding unless in writing and signed by eLearning Brothers. No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of, or excuse of any other different or subsequent breach. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
11.8. Force Majeure. Notwithstanding anything to the contrary: if and to the extent that a Party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed directly or indirectly by fires, floods, earthquakes, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders, eLearning Brotherss or revolutions in the United States, strikes/labor difficulties, electronic virus, electronic attack or infiltration, internet or wireless access disturbance, or any other cause beyond the reasonable control of such Party (each, a “Force Majeure Event”), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non performing, hindered or delayed Party shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as the Force Majeure Event continues and, except as otherwise provided in this Section 11.8, such Party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall notify the other Party as soon as reasonably possible of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event and plan for resuming its performance. If any Force Majeure Event continues for a period in excess of ninety days, the other Party shall have the right to terminate this Agreement effective upon notice. In the event of any such delay or failure, the affected party shall send written notice of the delay or failure and the reason thereof to the other party within fourteen (14) calendar days from the time the affected party knew or should have known of the Force Majeure in question.