This policy discloses the privacy practices for the TPC Web site. If you have any questions about this privacy statement, the practices of this site, or your dealings with this web site, you can contact our webmaster using this form. For more information about online privacy see the Federal Trade Commission Web site called Site Seeing .
WHAT INFORMATION DOES TPC COLLECT?
You can visit the TPC Web site without telling us who you are or revealing any personal information. The more information you provide, the more we can customize your experience. We may ask for information from you in several ways.
TPC's registration, information request, and subscription forms require users to give us their contact information (name, title, telephone number, e-mail address, and company/organization name and address). We use the knowledge gained to modify products and services to meet your needs, to send the information you requested in the format most convenient to you, and to personalize your TPC web experience.
TPC also captures information from browser cookies. Cookies are files written to a customer's disk and read by the http server program so that the server program knows you visited the site before. This knowledge allows us to analyze our site, see what is successful or useful, and modify our site based on common needs.
We may ask you for personal information when you become a registered user of the TPC Web site. You may be required to register and receive a logon name to be able to access and use certain features of the TPC Web site and to buy products or services. At that time, TPC may ask for certain required information such as your name, e-mail address, credit card number and expiration date, and other information to process and fulfill your order.
We also request certain other optional information that enables us to provide you with a more personalized TPC Web site experience. We will let you know what information is optional, and you decide whether or not you want to provide it.
We may track information about the type of browser you are using, the URL that you just came from, the next URL you go to, downloadable media you interact with, and your IP address. We use this information to identify trends that may be used to provide information tailored to your interests.
If you choose to buy products or services on our site, we collect information about your buying behavior.
We monitor customer traffic patterns and site usage to help us refine and improve the design and layout of our TPC Web site and the user experience.
If you send us personal correspondence, such as e-mails or letters, we may keep a record of that correspondence. We may also ask users for feedback to improve our services and products. If you respond to these requests, we may keep a record of your response.
We also collect IP addresses for system administration.
HOW DOES TPC USE MY INFORMATION?
We collect personal information to give you a customized experience and to help TPC understand its customers better. TPC does not sell, trade, or rent your personal information to others.
We use your contact information to send you information about our company and to contact you when necessary. Users may opt-out of receiving future mailings. Demographic and profile data is collected at our site so that we can tailor the users experience at our site, showing them content that we think they might be interested in, and displaying the content according to their preferences.
Use of browser cookies allows us to provide a better, more relevant customer experience, and to regulate Web site functions such as the timing, frequency, and type of advertising. Cookies may also be used to automate entry into password protected parts of TPC's site, or to automate data entry functions, so that users don't have to re-enter data with each visit.
We may use the information we collect to notify you from time to time about important functionality changes to the TPC Web site, up-to-date information about TPC services and products, and special offers we think you will find valuable.
We also research our users' demographics, interests, and behavior based on the information you give us. We compile and analyze this information on an aggregate or anonymous basis.
WHO COLLECTS INFORMATION?
DOES TPC SHARE MY INFORMATION WITH OTHERS?
Other than as stated in this policy, TPC does not disclose any of your personal information to third parties. TPC may disclose your information where disclosure is necessary to identify, contact, or bring legal action against someone who may be causing injury to or interference with our rights or property rights, the users' rights, or others' rights. TPC will also disclose information when we reasonably believe disclosure is required by law or to comply with a legal process. We may disclose your personal information in the good faith belief that we must act under exigent circumstances to protect the personal safety of users of TPC, its Web site, or the public.
DO I HAVE A CHOICE ABOUT HOW MY INFORMATION IS USED?
When you log in or register with the TPC Web site, you can choose to receive newsletters, information, and e-mails from TPC. If you change your mind, you can opt-out of receiving future e-mails. It's your choice.
You can make decisions about cookies. You can modify your browser preferences to accept all cookies, be notified when a cookie is set, or to reject all cookies. You can learn more about cookie preferences by clicking here. If you decide to reject all cookies, you cannot participate in TPC Web services that require registration to participate.
[Rev. February, 2015]
Terms and Conditions
PLEASE READ THIS TPC SERVICES AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS CONTRACTUAL RESTRICTIONS ON YOUR RIGHTS TO USE THE TPC SERVICES, RESTRICTIONS ON RIGHTS YOU CAN ENFORCE AGAINST TPC TRAINING, AND LIMITATIONS OF TPC TRAINING’S LIABILITY. BY EXECUTING THE APPLICABLE DOCUMENTS (SUCH AS PROPOSAL(S) AND STATEMENTS OF WORK) WITH TPC, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS. THESE TERMS ARE SUBJECT TO CHANGE, AND ANY USE OF ANY TPC SERVICES BY YOU AFTER SUCH CHANGES ARE POSTED SHALL BE DEEMED YOUR AGREEMENT TO SUCH CHANGES.
TPC Services Agreement
This TPC Services Agreement (the “Agreement”) is entered into by and between TPC Training Systems, a division of Telemedia, LLC, a Delaware limited liability company, and TPC Trainco, a dba of American Trainco, LLC, a Delaware limited liability company (collectively, “TPC”), and the customer user of the TPC Services described herein (“Customer), and sets forth the general terms and conditions under which TPC and Customer agree for TPC to provide the TPC Services to Customer. This Agreement may be supplemented from time to time by additional written agreements of the parties, such as Proposals, Statements of Work, or SaaS Services Agreements.
NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows:
1.1 “Access Credentials” shall have the meaning set forth in Section 4.13 of this Agreement.
1.2 “AUP” ” shall have the meaning set forth in Section 4.1 of this Agreement.
1.3 “Available” shall have the meaning set forth in Section 4.2 of this Agreement.
1.4 “Availability Requirement” shall have the meaning set forth in Section 4.2 of this Agreement.
1.5 “Confidential Information” shall mean any and all information or materials provided by one party to the other that are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure, or any other information, observed when at a facility of the other or a third party, that a reasonable business person would understand to be not publicly available, including, without limitation, all trade secrets, training materials, and student and corporate client lists; but shall not include information or materials that (i) were, on the Effective Date, generally known to the public; or (ii) become generally known to the public after the Effective Date other than as a result of the act or omission of the receiving party; or (iii) were rightfully known to the receiving party prior to that party’s receiving same from the disclosing party; or (iv) the receiving party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (v) are independently developed by the receiving party.
1.6 “Cure Period” shall have the meaning set forth in Section 5.3 of this Agreement.
1.7 “Custom Site” shall have the meaning set forth in Section 2.2 of this Agreement.
1.8 “Customer Content” shall mean all trademarks and all logos, video, records, works of authorship, audio, text, graphics, animation, and other copyrightable content supplied by Customer to TPC for inclusion into the SaaS Documentation or SaaS Services and any Personal Data or other Customer data or Confidential Information.
1.9 “Effective Date” shall mean the effective date of the commencement of the TPC Services as agreed by the parties including as set forth in any Proposal or SOW or SaaS Services Agreement.
1.10 “End-User” shall mean employees, consultants and contractors of Customer or other end-users who have registered and satisfied eligibility criteria listed in any Proposal, SOW or Schedule thereto or SaaS Services Agreement or SaaS Documentation or other agreement with TPC in order to access TPC Services online.
1.11 “Exceptions” means, for purposes of calculating the Availability Requirement, that neither the SaaS Services will be considered not Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its End-Users to access or use the SaaS Services that is due, in whole or in part, to any of the following: (a) act or omission by Customer or any End-User/access to or use of the SaaS Services by Customer or any End-User, or using Customer’s or an End-User’s Access Credentials, that does not strictly comply with this Agreement and the SaaS Documentation; (b) any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Customer’s or its End-User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by TPC pursuant to this Agreement; (f) Scheduled Downtime; (g) disabling, suspension or termination of the SaaS Services pursuant to Section 4.16; (h) any time the SaaS Services are not Available due to circumstances not within TPC’s control, including modifications of the SaaS Services by any person other than TPC or a person acting at TPC’s direction, general Internet outages, failure of Customer systems or Customer connectivity (including direct connectivity and virtual private network connectivity to the SaaS Services), computer and telecommunications failures and delays, and network intrusions or denial-of-service or other criminal attacks.
1.12 “Personal Data” means information that Customer provides or for which Customer provides access to TPC, or information which TPC creates or obtains on behalf of Customer, in accordance with this Agreement that is subject to U.S. and/or a state of the U.S. privacy and data protection law and: (a) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (b) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions and other personal identifiers). Customer’s business contact information is not by itself Personal Data. Personal Data does not include any information that is Prohibited Data.
1.13 “Prohibited Data” means any information subject to the EU General Data Protection Regulation or any other non-U.S. privacy or data protection law, PHI, or any information of a subject of Personal Data that is subject to a request to opt-out of the sale thereof or the deletion thereof.
1.14 “Project License” shall have the meaning set forth in Section 6.4 of this Agreement.
1.15 “Protected Health Information” or “PHI” means Personal Data that satisfies the definition of “protected health information” set forth in the Health Insurance Portability and Accountability Act of 1996 and implementing regulations, including the Standards for Privacy of Individuals Identifiable Health Information at 45 CFR Parts 160 and 164, as may be amended from time to time, specifically 45 CFR 160.103 (Definitions). Protected Health Information does not include any information that is Prohibited Data.
1.16 “Resultant Content” shall have the meaning set forth in Section 4.12 of this Agreement.
1.17 “SaaS Services Agreement” shall mean any Software-as-a-Service Provider Agreement or other agreement that details the relationship of the parties with regard to SaaS Services, together with all Exhibits, Schedules and Appendixes thereto, which shall (i) be signed by the parties and may reference this Agreement; and (ii) state the pertinent engagement parameters, which include, but are not limited to, SaaS Services access fees, pricing, payment, expense reimbursement, delivery time frame and other terms with respect to SaaS Services.
1.18 “SaaS Documentation” shall mean any user guides, help files or written instruction manuals regarding the use of the SaaS Services, whether in printed or electronic form, provided by TPC to Customer.
1.19 “SaaS Software” shall mean any proprietary solutions and operating methodology software provided by TPC by the SaaS Services.
1.20 “Safeguards” shall have the meaning set forth in Section 4.20 of this Agreement.
1.21 “Scheduled Downtime” means the time when the SaaS Services are not Available due to: (a) routine repairs, maintenance, improvements, updates or changes to the TPC systems or SaaS Services; (b) compliance with any law; (c) avoiding infringement or misappropriation of third party intellectual property rights; (d) ensuring and maintaining the availability, security and performance of the TPC systems; or (e) TPC’s exercise of its reasonable judgment.
1.22 “Service Allocation” shall have the meaning set forth in Section 4.19 of this Agreement.
1.23 “Service Period” shall have the meaning set forth in Section 4.2 of this Agreement.
1.24 “Service Level Failure” shall have the meaning set forth in Section 4.2 of this Agreement.
1.25 “Statement of Work” or “SOW” or “Proposal” shall mean a statement of work or Proposal or any agreement that details the relationship of the parties with regard to TPC Services or a specific project, which document shall (i) be signed by the parties and may reference this Agreement; and (ii) state the pertinent engagement parameters, which include, but are not limited to, fees, pricing, payment, expense reimbursement, delivery time frame, and other terms.
1.26 “TPC Proprietary Rights” shall have the meaning set forth in Section 6.1 of this Agreement.
1.27 “TPC Services” shall mean, individually and collectively, any or all of the following products and services provided by TPC to Customer:
(i) “TPC Online”: website based training programs
(ii) “TPC Onsite”: instructor class based training programs; or
(iii) “SaaS Services”: hosting, managing, maintaining and supporting a single production instance of the SaaS Software in an operations environment for remote access and use by multiple End-Users solely for Customer’s internal business purposes.
1.28 “Work Product” shall have the meaning set forth in Section 6.1 of this Agreement.
2 TPC ONLINE
2.1 Engagement. TPC Online™ web application is an Internet service for delivering comprehensive training management, content delivery, knowledge assessments and reporting solutions to corporations. Applications for the TPC Online service include technical skills & safety training, knowledge assessment, centralized training management, and reporting. Each engagement for TPC Online shall have the terms and conditions set forth in the separately signed SOW or Proposal, in addition to the terms and conditions set forth herein.
2.2 Custom Site. TPC will configure a TPC Online™ Internet web site (“Custom Site”), on behalf of Customer. That web site will be the location for all courses and tests that Customer wishes to deliver during the term of this Agreement. TPC will configure database to fit Customer’s environment (departments, job titles, locations)
2.3 Content. TPC will populate the Custom Site with all the pre- and post-tests available for every TPC Online course. TPC will also load to the Custom Site the TPC Online courses available in Internet format.
2.4 User Access. TPC will make available, through the Custom Site, the TPC Online content and custom tests and electronic documents, to employees of Customer. TPC will grant employees specifically identified by Customer the ability to access such content through the Custom Site, by entering a unique user name and password. Each user will be assigned content by administrators of Customer. Once the employee begins a TPC Online course on the site, a “course use” will be assessed consistent with the plan purchased.
2.5 Call Center. TPC will provide Call Center support for Customer Monday to Friday, between the hours of 9:00 AM to 5:00 PM Central Time, excluding US holidays
2.6 System Availability. TPC will provide at least ninety nine percent (99%) level of availability to access and use the Software 24 hours per day, 7 days per week, including all holidays but excluding inability to access TPC Online due to (i) scheduled maintenance, (ii) acts or omissions of Customer or its agents, (iii) issues arising from bugs or other problems in the software, firmware or hardware of third parties; (iv) delays or failures due to circumstances beyond TPC’s reasonable control; or (v) any outage, network unavailability or downtime outside TPC’s hosting service provider’s network.
2.7 Backup. TPC will provide backup services of the data on a schedule of (1) once per day and insuring that up to seven (7) days of backup data is available at all times. TPC will use commercially reasonable efforts to ensure that copies of the most recent seven (7) days of backup data are held offsite from the TPC designated data center.
2.8 Security. TPC maintains a commercially reasonable security process and protocol. TPC’s designated data center controls and processes are annually audited by an independent third party. Access to the audit report requires a NDA with ORCS Web.
2.9 Help Desk. TPC will use commercially reasonable efforts to respond to software problems and errors reported by Customer to the TPC Help Desk according to the following problem severity:
(a) “Level 1” is an emergency production situation where the Software is totally inoperable or fails catastrophically and there is no workaround. TPC will guarantee response to and make best efforts to resolve Level 1 issues within 4 hours.
(b) “Level 2” is a detrimental situation (and there is no workaround) where (a) performance degrades substantially under reasonable loads causing a severe impact on use; (b) the Software is usable but materially incomplete; or (c) one or more mainline functions or commands is inoperable. TPC will guarantee response to and make best efforts to resolve Level 2 issues within 4 hours.
(c) “Level 3” is an inconvenient situation where the Software is usable, but does not provide a function in the most convenient manner. TPC will guarantee response to Level 3 within 24 hours of the report filing.
2.10 Uncontrollable Events. TPC shall have no responsibility or liability for failures of the Custom Site due to events beyond TPC’s control including, without limitation, the following events:
(a) Failures due to communications circuits, or any other circuit provided by third party vendors.
(b) The inability of Customer to access a TPC gateway router due to ISP problems or any other failure not caused by the TPC gateway router.
(c) Failures caused by application, operating system, communication software, or hardware installed on customer equipment or facilities (including, but not limited to, web browsers, proxy servers, or firewalls).
(d) Failures due to use of unsupported browsers by Customer or its clients (Note: at the time of this Agreement the browsers supported by the TPC Online™ System are Microsoft Internet Explorer 10 and higher, Mozilla Firefox 12 and higher, and Google Chrome.
(e) Failures due to acts of God or nature or malicious acts of anyone other than TPC employees.
3 TPC ONSITE
3.1 Engagement. Each engagement for TPC Onsite Instructor-led courses shall have the Days, Course, Description, Number of Students, Price and other terms and conditions as set forth in the SOW or Proposal, in addition to the terms and conditions set forth herein.
3.2 Class Size. The standard class size is up to 20 students. All classroom materials will be included for the specified number of students in the SOW or Proposal. Training dates are reserved on a first to confirm basis and may not be available if scheduled less than four weeks in advance. TPC recommends scheduling as soon as possible.
3.3 Cancellations. Cancellations within 14 days of a scheduled event will be subject to a cancellation fee of $2,500. If the scheduled event is hosted at a later date, a $1,500 change fee will be assessed in addition to the original cost.
3.4 Instructors. TPC shall have the final and sole responsibility for Instructor personnel placement.
4 TPC SaaS SERVICES
4.1 Access to SaaS Services. Subject to and conditioned on Customer’s and its End-Users’ compliance with the terms and conditions of this Agreement and of any SaaS Services Agreement, TPC hereby grants to Customer a non-exclusive, non-transferrable (except in compliance with Section 12.3) right to access and use the SaaS Services during the term of this Agreement, solely for use by End-Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal business purposes. Customer and its End-Users shall access and use the SaaS Services only in connection with Customer Content and only in compliance with applicable laws and any TPC acceptable use policy posted on a TPC website or associated with the SaaS Services (“AUP”). Customer acknowledges and agrees that the operation of Customer’s business is not dependent upon the uninterrupted or error-free operation of the SaaS Services.
4.2 Service Levels. Subject to the terms and conditions of this Agreement, TPC shall use commercially reasonable efforts to make the SaaS Services available for access and use by Customer and its End-Users over the Internet and operating in material accordance with the SaaS Documentation (“Available”) at least ninety-nine and nine-tenths percent (99.5%) of the time as measured over the course of each calendar month during the term of this Agreement (“Service Period”), excluding unavailability as a result of any of the Exceptions (“Availability Requirement”). TPC is not liable to Customer for failing to provide the SaaS Services unless such failure results from a material failure of the Services to meet the Availability Requirement (“Service Level Failure”), or results from the recklessness, willful misconduct or intentional breach of this Agreement by TPC. Customer acknowledges that the SaaS Services in any non-production instance or testing environment for evaluation purposes are at-risk services and, as such, not subject to any Availability Requirement nor eligible for any service credit in the form of any term extension, cash value, monetary payment or credit against any fees or costs incurred. In the event of a Service Level Failure, TPC will issue a service credit; provided, however, that TPC has no obligation to issue any service credit unless Customer reports the Service Level Failure to TPC immediately on becoming aware of it; and Customer requests such service credit in writing within ten (10) days of the end of the calendar month in which the Service Level Failure occurred identifying the support services requests related to the time periods when Customer’s production instance of the SaaS Services was not Available. The service credit for a Service Level Failure will be 10% of the monthly SaaS Services fee for every hour after an initial two (2) hours that the SaaS Service is not in compliance with the Availability Requirement, not to exceed 100% of the monthly SaaS Service access fee for the calendar month the Service Level Failure occurs; provided that if the aggregate Service Level Failure in any calendar month lasts more than 20 hours or if the aggregate Service Level Failures in any consecutive three-(3) month period totals more than 50 hours, Customer may by written notice to TPC terminate this Agreement for cause. Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the calendar month in which Customer provided timely notice of the Service Level Failure. This Section 4.2 sets forth TPC’s sole obligation and liability and Customer’s sole and exclusive remedy for any Service Level Failure. TPC may delay issuing service credits until such amounts reach $1,000 USD. Subject to its obligation to use commercially reasonable security measures and security tools and to otherwise comply with the terms of this Agreement, in the event of such extraordinary unauthorized access, TPC will not be responsible for any damages or costs incurred by Customer, if any, for SaaS Services outages of any kind, including but not limited to, any outages caused by malicious alteration of the SaaS Software by unauthorized personnel. Such damages or costs includes but are not limited to lost business revenue, fees, fines or any legal action associated with said outage.
4.3 Scheduled Maintenance. TPC reserves the right to take down applicable servers containing the SaaS Services and SaaS Software to conduct regular periodic routine maintenance and backups from time to time.
4.4 SaaS Support Services. TPC may amend the support services from time to time in its sole discretion. Customer acknowledges and agrees that any assistance provided by TPC in connection with support services shall not create any additional or alter any existing obligation or liability of TPC other than as set forth in this Agreement or waive any liability disclaimer by TPC herein. TPC will provide to Customer (a) maintenance and or moving of the application or applications to another server in the event of hardware failure or the need for extended maintenance and or upgrades of the current servers in use by Customer, (b) daily backup of the SaaS Software and Customer Content as from time to time agreed by the parties, including as set forth in any SaaS Services Agreement, (c) a repository of backup media kept in the event of a disaster restore incident, as from time to time agreed by the parties, and for a fee agreed by the parties, including as set forth in any SaaS Services Agreement, (d) correction of anomalies and errors in the SaaS Software, and ( e) additional phone support, first-level diagnostic support, and other support as from time to time and agreed by the parties, and for a fee agreed by the parties, including as set forth in any SaaS Services Agreement. The SaaS Services do not replace the need for Customer to maintain regular data backups or redundant data archives. TPC HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER CONTENT, UNLESS CAUSED BY TPC’S RECKLESSNESS OR WILLFUL MISCONDUCT. Backup files will be maintained for no longer than seven (7) days on a server accessible by Customer via URL (i.e., secure file transfer protocol or explicit application(s), if applicable) from which Customer may retrieve the database backups at any time, unless stated otherwise herein. TPC may destroy any and all backups seven (7) days after created. In the event of a Force Majeure or any loss, destruction, damage or corruption of Customer Content caused by the TPC systems or SaaS Services, TPC will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Content from TPC’s then most current backup of such Customer Content. Customer releases TPC from liability for loss of data to the extent that the Customer Content changed since the last time that a backup was required to be performed.
4.5 TPC Limited License Grant. Subject to the terms and conditions of this Agreement, TPC hereby grants to Customer, during the Term, a nontransferable (except as provided in this Agreement), nonexclusive, limited license to use the SaaS Documentation solely for the purposes of its own business process, and as described in any SaaS Services Agreement, in connection with its use of the SaaS Services, namely to support End-Users’ use of the SaaS Services.
4.6 TPC Trademark and Copyright Notices. Customer acknowledges and agrees that TPC reserves the right to display the TPC trademarks (name and product logo) designated by TPC for use in connection with the marketing and promotion of the SaaS Services. Customer will not remove any trademarks, or trademark or copyright notices from the SaaS Software or SaaS Documentation.
4.7 SaaS Software Restrictions. The SaaS Documentation and the SaaS Software contain trade secrets and other valuable proprietary information owned by TPC or its vendors. Customer shall not, and shall not permit any other third party to, access or use the SaaS Services, SaaS Software or SaaS Documentation except as expressly permitted by this Agreement and, in the case of any third party materials, the applicable third party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer and its End-Users shall not, except as this Agreement expressly permits: (a) modify, make derivative works or improvements, or alter or permit any party to modify, make derivative works or improvements, or alter, any part of the SaaS Services, SaaS Software or SaaS Documentation; (b) copy or permit any party to copy the SaaS Services, SaaS Software or SaaS Documentation in part or in whole; (c) reverse engineer, de-compile, disassemble, decode, adapt or otherwise attempt to derive or gain access to the source code of SaaS Software, or other proprietary information from the SaaS Services or the SaaS Software, in whole or in part; (d) rent, lend, sell, sublicense, assign, distribute, publish, transfer, lease or otherwise make available the SaaS Software, SaaS Documentation or SaaS Services to any third party, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (e) bypass or breach any security device or protection used by the SaaS Services, SaaS Software or SaaS Documentation or access or use the SaaS Services, SaaS Software or SaaS Documentation other than by an End-User through the use of his or her own then valid Access Credentials; (f) input, upload, transmit or otherwise provide to or through the SaaS Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (g) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the SaaS Services or TPC’s provision of services to any third party, in whole or in part; (h) remove, delete, alter or obscure any trademarks, SaaS Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any SaaS Services, SaaS Software or SaaS Documentation, including any copy thereof; (i) access or use the SaaS Services, SaaS Software or SaaS Documentation in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other TPC client), or that violates any applicable law; (j) access or disable any TPC or third-party data, software or network (other than Customer’s instance of the SaaS Services under this Agreement); (k) upload, or use the SaaS Services to process, manage, analyze, summarize or report, any data of any person or entity other than Customer; (l) access or use the SaaS Services, SaaS Software or SaaS Documentation for purposes of competitive analysis of the SaaS Services, SaaS Software or SaaS Documentation, the development, provision or use of a competing software service or product or any other purpose that is to TPC’s detriment or commercial disadvantage; or (m) otherwise access or use the SaaS Services, SaaS Software or SaaS Documentation beyond the scope of the authorization granted under this Agreement. If Customer becomes aware of any actual or threatened activity prohibited above in this Section 4.7, Customer shall, and shall cause its End-Users to, immediately: (x) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Services, SaaS Software and SaaS Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (y) notify TPC of any such actual or threatened activity. Customer shall promptly suspend access to the Services for any person who (i) ceases to qualify as an End-User, (ii) Customer no longer wishes to have access to the SaaS Services, or (iii) Customer knows or reasonably believes is causing or will cause Customer to breach any provisions of this Agreement.
4.8 SaaS Software Services Monitoring. TPC may electronically monitor Customer’s use of the SaaS Services for compliance with all the license terms and restrictions set forth in this Agreement. The method to be used by TPC to electronically monitor Customer’s use of the SaaS Services for compliance will be, and Customer hereby approves, the preparation and review of TPC SaaS Services User License and Access Report.
4.9 Limited License Grant by Customer. Subject to the terms and conditions of this Agreement, Customer hereby grants to TPC, during the Term, a nontransferable, nonexclusive, limited license to use the Customer Content solely in connection with the SaaS Services. TPC agrees not to remove, without consent of Customer, any trademark or copyright notices from the Customer Content.
4.10 Ownership SaaS Services. Except for the Customer Content, TPC has and shall retain sole and exclusive ownership of, and all right, title and interest in and to the SaaS Services, SaaS Software, and SaaS Documentation, as well as any graphical user interface modifications made for Customer and all suggestions, ideas, improvements, data, feedback, evaluation materials, reports, presentations, designs, technology, inventions, know-how, works of authorship, software, specifications, modifications and other materials, information and any other intellectual property made, developed, conceived or reduced to practice, as they pertain to the SaaS Services. TPC has and will retain sole control over the operation, provision, maintenance, and management of the SaaS Services, SaaS Software or SaaS Documentation. TPC may revise the features and functions of the SaaS Services, SaaS Software or SaaS Documentation or the Availability Requirement at any time, including without limitation by removing any features or functions and reducing the Availability Requirement; provided, however, that if any such revision materially reduces the features or functionality so as to impair or diminish the usefulness of the SaaS Services to Customer, Customer may within thirty (30) days of the date of the TPC notice of the revision terminate this Agreement, without cause, by written notice to TPC which such termination shall be effective on that date that is sixty (60) days after the date of the TPC notice of revision. TPC reserves the right, in its sole discretion, to make any changes to the SaaS Services, SaaS Software or SaaS Documentation that it deems necessary or useful to maintain or enhance the quality or delivery of TPC’s services to its customers, the competitive strength of or market for TPC’s services, or the SaaS Services’ cost efficiency or performance; or to comply with applicable law.
4.11 Customer Content and Systems. Customer shall retain sole and exclusive ownership of, and all right, title and interest in and to the Customer Content, as well as any revisions, modifications to or derivative works created from the Customer Content, provided that nothing in this provision shall permit Customer to gain any ownership rights in the SaaS Software or SaaS Services or SaaS Documentation. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the SaaS Services, SaaS Software or SaaS Documentation by any person by or through the Customer systems or any other means controlled by Customer or any End-User, including any: (a) information, instructions, or materials provided by any of them to the SaaS Services or TPC; (b) results obtained from any use of the SaaS Services, SaaS Software or SaaS Documentation; and (c) conclusions, decisions or actions based on such use. Customer controls which Customer Content is input in and through the SaaS Services. Customer, not TPC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Customer Content. Without limiting the generality of the preceding sentence, Customer is solely responsible for compliance of Customer Content and the use thereof with applicable law and the AUP. TPC shall not be responsible or liable for any deletion, destruction, damage or loss of any Customer Content that is caused by Customer. Customer will not engage in any activities related to the SaaS Services or any Customer Content that use excessive server resources, or may adversely affect any other TPC clients. Customer acknowledges that, if indicated on the applicable fees provisions, it will share server resources with other TPC clients or third parties. Customer recognizes and agrees that hosting Customer Content online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS Services, Customer assumes all such risks. TPC makes no representation or warranty, or guarantee that the storage or transmission of Customer Content will be inaccessible to unauthorized third parties or that Customer Content will not be exposed or disclosed through errors or the actions of third parties. Customer shall direct to TPC every verifiable request to delete the Personal Data of a subject of Personal Data that is received by Customer, and Customer will provide instructions to TPC regarding such deletion request in accordance with applicable law.
4.12 Resultant Content. Customer hereby unconditionally and irrevocably grants to TPC an assignment of all right, title and interest in and to the data and information related to Customer’s and End-Users’ use of the SaaS Services that is used by TPC in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Services (“Resultant Content”), including all intellectual property rights relating thereto. TPC may gather, aggregate, compile and use Resultant Content in order to improve, develop or enhance the SaaS Services and/or other services offered, or to be offered, by TPC; provided that no Resultant Content is identifiable as originating from, or can be traced back to Customer or any of its End-Users, in such aggregated form.
4.13 Access Credentials. Upon receipt by TPC of the registration information of Customer, TPC will provide to Customer within a reasonable time thereafter user names and passwords (“Access Credentials”) to be issued to End-Users in order to access the SaaS Services. Each End-User must have unique Access Credentials, which are owned by the Customer. Customer shall be solely responsible for the Customer’s and End-Users’ use the SaaS Services and compliance with this Agreement. Customer shall ensure that only End-Users have access to any Access Credentials provided by TPC and neither Customer nor End-Users shall not disclose such Access Credentials to any other third party. Customer is solely responsible for strictly maintaining the confidentiality and integrity of such Access Credentials. Customer shall notify TPC in writing upon any known or suspected unauthorized use of any Access Credential (including whether lost or stolen), the SaaS Services or any other breach of security or integrity that impacts this Agreement.
4.14 Customer Systems and Cooperation. Customer shall at all times during the term: (a) set up, maintain and operate in good repair all Customer systems on or through which the SaaS Services are accessed or used; (b) be solely responsible for (i) understanding the requirements of laws applicable to Customer’s business, (ii) determining the suitability of the SaaS Services with respect to the type of Customer Content used with the SaaS Services, and (iii) selecting and using the SaaS Services in a manner that complies with the applicable laws; (c) cooperate with TPC’s investigation of outages, security problems, unauthorized use of the SaaS Services and/or any suspected breach of this Agreement, the AUP or any applicable law or court order; (d) use the SaaS Services and SaaS Documentation at its own risk; (e) conduct its own review and confirmation of any results or report generated from or in connection with the SaaS Services or SaaS Documentation; and (f) provide all cooperation and assistance as TPC may reasonably request to enable TPC to exercise its rights and perform its obligations under and in connection with this Agreement. TPC will not be responsible for any errors or issues that arise from the malfunction or failure of the Customer systems, connectivity or any Internet access services of Customer or its End-Users. TPC is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
4.15 Subcontractors. TPC may from time to time in its discretion engage subcontractors. Customer acknowledges and consents to TPC’s use of a subcontractor as a hosting provider to TPC. TPC will be responsible for errors or omissions of the Subcontractors as if committed by TPC.
4.16 Suspension or Termination of Services. TPC may, directly or indirectly, and by use of a TPC disabling device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any End-User’s, or any other person’s access to or use of all or any part of the SaaS Services, SaaS Software or SaaS Documentation, without incurring any resulting obligation or liability, if: (a) TPC receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires TPC to do so; (b)TPC believes, in its good faith and reasonable discretion, that: (i) Customer or any end-User has failed to comply with any term of this Agreement, or accessed or used the SaaS Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the SaaS Documentation; (ii) Customer or any End-User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the SaaS Services; or (iii) Customer or any End-User used or is using the SaaS Services in violation of any law or industry policies and practices, or otherwise in a manner deemed to be harmful to the SaaS Services; (c) Customer doesn’t cooperate with a reasonable investigation of any suspected violation of the Agreement; (d) there is an attack on the SaaS Services or the SaaS Services are accessed or manipulated by a third party without Customer’s consent; (e) suspension is required by any law, or a regulatory or government body, including any investigation of suspicious activities; (f) there is any event for which TPC reasonably believes that the suspension of SaaS Services is necessary to protect the TPC systems or other TPC customers; or (g) this Agreement expires or is terminated. This Section 4.16 does not limit any of TPC’s other rights or remedies, whether at law, in equity or under this Agreement. TPC will use commercially reasonable efforts to provide Customer advance notice of a suspension resulting from any of the foregoing of at least twelve (12) business hours, unless TPC reasonably determines that a suspension on shorter or contemporaneous notice is necessary to protect the SaaS Services, the TPC systems or other TPC customers from imminent and significant operational, legal or security risk.
4.17 Service Provider. Customer acknowledges and agrees that it discloses Customer Content to TPC, and that TPC (and its subcontractors), as a service provider, processes the Customer Content on behalf of Customer pursuant to this Agreement for the Customer business purposes of performing the services as set forth in more detail in this Agreement. Customer represents and warrants that disclosing and sharing the Customer Content with TPC is necessary to perform such business purposes and that the use of the Customer Content by TPC is reasonably necessary and proportionate to achieve the operation of such business purposes. TPC’s use of the Personal Data is limited to that which is necessary to perform such business purposes.
4.18 Certification. TPC certifies that it understands and will comply with the following restrictions: TPC will not sell the Personal Data; TPC will not retain, use or disclose the Personal Data for any purpose other than such business purposes or otherwise permitted under applicable law; and TPC will not retain, use or disclose the Personal Data outside of the direct business relationship between Customer and TPC.
4.19 Service Usage and Data Storage. The SaaS Services Agreement, SOW, Proposal or similar agreement sets forth fees for the designated level of usage (number of users, concurrent users, etc.), data storage and other components of the SaaS Services (“Service Allocation”). If Customer exceeds any Service Allocation component for any relevant period, TPC may charge Customer additional fees or suspend the Services under Section 4.16. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other TPC clients and agrees that: (a) TPC has no obligation to permit Customer to exceed its then-current Service Allocation; and (b) Customer is not entitled to any service credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Services fail to meet the Availability Requirement during such period.
4.20 TPC Systems and Security Obligations. TPC has implemented and will maintain reasonable administrative, technical and physical safeguards, security procedures and practices appropriate to the nature of the information designed to (a) ensure the confidentiality, integrity and availability of the Personal Data created, received, maintained or transmitted; (b) identify and protect against reasonably anticipated threats to the security or integrity of the Personal Data; (c) protect against reasonably anticipated, impermissible uses or disclosures of the Personal Data; and (d) provide proper disposal of the Personal Data, and ensure compliance by employees and agents (“Safeguards”). TPC may modify the Safeguards from time to time in accordance with changes to industry standards, legal requirements, etc. TPC will have no liability for any harm or damages resulting from TPC’s compliance with instructions received from Customer for processing any Customer Content or Personal Data. Where TPC believes that compliance with Customer’s instructions could result in a violation of any law or is not in the ordinary course of TPC’s obligations in performing the SaaS Services, TPC will notify Customer thereof. In order to provide the SaaS Services, Customer may disclose to TPC certain Personal Data. To the extent permitted by applicable law, TPC may disclose or use such nonpublic personal information in the ordinary course of business to carry out the Services. The parties agree that for purposes of processing the Personal Data and PHI: (i) Customer, as the manager of the Customer Content, will determine the purposes and means of processing the Personal Data; (ii) TPC, as a service provider to Customer, will process the Personal Data on behalf of and under the instructions of Customer; or (iii) as otherwise designated by an applicable authority with competent jurisdiction.
4.21 Data Breach Procedures. In the event of a data breach incident in connection with Personal Data in the custody or control of TPC, TPC will promptly notify Customer upon knowledge that a data breach incident has occurred. Customer, by this Agreement, instructs and has instructed TPC not to contact any subjects of Personal Data directly, unless required by applicable Law. TPC will reasonably cooperate with Customer in responding to or addressing any request from a subject of Personal Data, a supervisory authority with jurisdiction, or the Customer, to the extent necessary to enable Customer to comply with its obligations under applicable law as the data controller. Customer will promptly reimburse TPC for any out-of-pocket expenses and professional time at TPC’s then-current hourly rates. Customer will provide prompt written notice to TPC (with sufficient detailed instructions) of any subject of Personal Data request or other act that is required to be performed by TPC as the data processor on behalf of Customer as the data controller. In the event that a supervisory authority with jurisdiction makes the determination contrary to this Agreement that TPC is a data controller, Customer will reasonably cooperate with TPC to enable TPC to comply with its obligations under applicable law. Notwithstanding the foregoing, TPC may retain a copy of the Personal Data as permitted by applicable law, provided that such Personal Data remain subject to the terms of this Agreement.
4.22 Disaster Recovery. TPC maintains a disaster recovery plan for the TPC Systems that is tested annually.
4.23 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for processing Prohibited Data. Customer shall not, and shall not permit any End-User or other person to, provide any Prohibited Data to, or process any Prohibited Data through, the SaaS Services, the TPC systems or any TPC personnel. Customer is solely responsible for reviewing all Customer Content and shall ensure that no Customer Content constitutes or contains any Prohibited Data.
4.24 Customer Control and Responsibility. Customer has and will retain sole responsibility and liability for: (a) all Customer Content, including its content, processing, accuracy, completeness, use and compliance with applicable law; (b) all information, instructions and materials provided by or on behalf of Customer or any End-User in connection with the SaaS Services; (c) Customer systems, the security thereof and the security of its access to, connection with and use of the SaaS Services; (d) the security, distribution and use of Customer’s and its End-Users’ Access Credentials; (e) all access to and use of the SaaS Services, SaaS Software and SaaS Documentation directly or indirectly by or through the Customer systems or its or its End-Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, and activity resulting from, such access or use; (f) performing an appropriate risk assessment, in accordance with applicable law and before submitting any Personal Data to the SaaS Services, to determine whether the Safeguards provide an adequate level of security, taking into account the nature, scope, context and purposes of the processing, the risks associated with the Personal Data, and any applicable law; (g) ensuring that its instructions to TPC for processing of the Personal Data, deemed to be this Agreement, comply with applicable law; (h) providing notice to the subjects of Personal Data that their respective Personal Data will be shared with and used by TPC, and its subcontractors, as a service provider to Customer, and not sold to TPC or its subcontractors as third parties; (i) Customer representations regarding the extent to which Customer is entitled to process Personal Data; (j) determining whether to notify the relevant supervisory or regulatory authorities and impacted subjects of Personal Data and for providing such notice; and (k) any information or materials that are unlawful or injurious, or contain, transmit or activate and harmful code that is input, uploaded or transmitted to or through the SaaS Services or TPC systems as Customer Content, and the consequences thereof.
4.25 Customer Warranty. Customer represents, warrants and covenants to TPC that it (a) owns or otherwise has and will have the necessary rights and authority, including consents and notices, under applicable law in and relating to the Customer Content, including Personal Data, in order to provide such Customer Content to TPC in connection with the SaaS Services and so that, as received by TPC and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; (b) has processed and provided the Personal Data to TPC in accordance with applicable law; and (c) will limit the Personal Data provided to TPC to Personal Data necessary to perform the SaaS Services.
4.26 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other Safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the SaaS Services; and (b) control the content and use of Customer Content, including the uploading or other provision of Customer Content for processing by the SaaS Services.
5 TERM AND TERMINATION
5.1 Agreement Term – This Agreement commences on the Effective Date, and ends upon the earlier of (x) with respect to TPC Online, the date of the end of the active duration of the TPC Online Custom Site, (y) with respect to TPC Onsite, the date that the subject courses are concluded pursuant to the SOW or Proposal, and (z) with respect to SaaS Services, the date that is twenty-four (24) months from the Effective Date; in each case unless otherwise provided the applicable Proposal, SOW or SaaS Services Agreement. In the event that any party to this Agreement ceases to conduct business in the ordinary course, becomes insolvent, files for bankruptcy protection or similar relief or makes an assignment for the benefit of its creditors, or has a receiver appointed for its assets, then the other party may at its option terminate this Agreement by written notice.
5.2 Termination for Non-Payment. TPC may terminate this Agreement and cease all TPC Services to Customer if Customer fails to pay any amount due and owing to TPC within thirty (30) days after written notice to Customer that such payment is delinquent.
5.3 Termination for Cause – Each party shall notify the other in writing in case of the other’s alleged violation of a material provision of this Agreement or the applicable SOW or Proposal or SaaS Services Agreement. The recipient shall have, except to the extent specifically otherwise agreed in writing by the parties and except as provided in Section 4.2 (a) with respect to SaaS Services outage, thirty (30) calendar days from the date of receipt of such notice to effect a cure such violation (the “Cure Period”). If the recipient of such notice fails to effect such cure within the Cure Period, then the sender of such notice shall have the option of sending a written notice of termination, which notice shall take effect upon receipt, and such sender shall thereafter have such remedies as are provided at law, in this Agreement and the applicable SOW or Proposal or SaaS Services Agreement.
5.4 Effect of Termination or Expiration. Upon termination or expiration of this Agreement: (i) all amounts owed by Customer to TPC or accrued by TPC for the TPC Services shall become due and payable on the effective date of such termination, (ii) all rights and licenses granted to Customer by TPC in connection with the TPC Services shall immediately terminate, (iii) Customer shall immediately cease all use of any TPC Services and deliver to TPC all tangible embodiments of any software, SaaS Software, SaaS Documentation, and Confidential Information, (iv) Customer shall immediately permanently delete or destroy any data or software installed in a Customer’s computer system downloaded from SaaS Services except for data residing on the business continuity or emergency backup system of Customer, which shall be destroyed in accordance with its record retention policies, (v) TPC shall return to Customer all tangible embodiments of the Customer Content and Confidential Information, and (vi) Customer may, within seven (7) days of the effective date of termination download any Customer Content; provided, that after such period TPC may delete any Customer Content without liability.
5.5 Survival – Any provision of this Agreement or other written agreement of the parties that by its very nature or context is intended to survive any termination, cancellation or expiration thereof, including without limitation confidentiality and indemnification provisions, shall so survive.
5.6 Refunds If in connection with any cancellation or termination of this Agreement, amounts prepaid by Customer in respect of TPC Services are owed to Customer, TPC shall promptly refund such amounts to Customer after deduction any amounts due and owing from Customer to TPC, including without limitation cancellation charges or similar fees as provided in this Agreement, or any Proposal, SOW or SaaS Services Agreement, or as otherwise mutually agreed between the parties.
5.7 Audit and Inspection. TPC shall maintain and preserve records in respect of the TPC Services rendered to Customer, including information related to payments made and TPC’s performance under this Agreement in accordance with its commercially reasonable policies and practices. Customer may in writing request information pertinent to TPC’s performance of its obligations under this Agreement, and TPC agrees to cooperate with respect to any such commercially reasonable requests; provided, however, that TPC may redact any portion of any information or records containing Confidential Information of TPC or any third party.
6 PROPRIETARY RIGHTS
6.1 Proprietary Rights – All patents, copyrights, trade secrets, methodologies, ideas, inventions, concepts, know-how, techniques or other intellectual property developed or provided by TPC including, except as specifically set forth in a SOW or Proposal or SaaS Services Agreement, all written reports, analyses, training materials, student or corporate client lists, and other working papers delivered by TPC to Customer in the performance of any TPC Services, including under any SOW or Proposal or SaaS Services Agreement (“Work Product”) are and remain TPC property (“TPC Proprietary Rights”). Nothing herein shall preclude TPC from developing, using or marketing services or materials that are similar or related to such Work Product to or for other parties. TPC shall defend Customer against any third party claim that a Work Product or Service provided hereunder or Customer’s use thereof infringes a U.S. patent or copyright and pay the resulting damages and costs finally awarded against Customer by a court of competent jurisdiction; provided Customer (i) notifies TPC promptly in writing of such claim, (ii) grants TPC sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a TPC request for assistance. Should any Work Product or Service become, or in TPC’s opinion be likely to become, the subject of such a claim, TPC shall, at its option and expense, (a) procure for Customer the right to make continued use thereof, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Work Product and upon receipt thereof refund the price paid by Customer, less straight-line depreciation based on a five (5) year useful life or discontinue the Service and refund the portion of any prepaid Service fee that corresponds to the period of Service discontinuation. TPC shall have no liability to the extent the alleged infringement is based on (1) combination with non-TPC approved products, (2) use for a purpose or in a manner for which the Work Product was not approved, (3) any modification not made with TPC’s written approval, (4) any modifications made by TPC pursuant to Customer’s specific instructions, or (5) any intellectual property right owned or licensed (other than hereunder) by Customer. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND TPC’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
6.2 Customer Furnished Materials and Use. – All Customer Content furnished by Customer for use by TPC in connection with the TPC Services shall remain Customer property.
6.3 Work Product License – Subject to Customer’s payment in full for the fees hereunder, Customer is licensed to use such TPC Proprietary Rights internally, for the purpose for which the Work Product was provided, on a limited, nonexclusive, nontransferable basis. Customer shall not sublicense or otherwise transfer to any third party any Work Product or TPC Proprietary Rights.
6.4 Software License – Any license granted by TPC to Customer to use TPC software in conjunction with any of the TPC Services (a “Project License”), such Project License shall consist solely of a nonexclusive, nontransferable and non-sublicensable right to use such software only in direct connection with the applicable TPC Services for Customer’s internal business purposes. The term of the Project License shall start on delivery of the software or Custom Site and expire one (1) year thereafter, or on completion of the subject project, whichever occurs first.
7.1 Confidential Information – The receiving party shall protect the other’s Confidential Information, by means of the same standard of care as used by the receiving party to protect its own information of a similar nature and importance, and no less than reasonable care. The receiving party shall use Confidential Information only to fulfill its obligations or to exercise its rights hereunder and shall disclose Confidential Information only to those persons in its organization who have a need to know such Confidential Information in the performance of their duties in connection herewith and who are bound by a written agreement to protect the confidentiality of such Confidential Information, and the receiving party will promptly report to the disclosing party any actual or suspected breach hereof.
7.2 Publicity – Each party shall not, and shall not authorize or assist another to, originate or produce any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to this Agreement, without the prior written approval of the other, which approval shall not be unreasonably withheld. The terms of this Agreement and each related SOW and Proposal and SaaS Services Agreement, but not their existence, are Confidential Information.
8 INVOICING AND PAYMENT
8.1 Payment - TPC shall submit invoices for fees and reimbursable costs and expenses and be paid in the manner specified in the applicable SOW or Proposal or SaaS Services Agreement. Except to the extent otherwise provided in the applicable SOW or Proposal or SaaS Services Agreement, all TPC invoices are payable net 30 days. All amounts are due in United States Dollars. Customer shall also pay all related taxes and withholdings, except for those based on TPC’s employees or net income.
9 REPRESENTATIONS AND WARRANTIES
9.1 By Customer. Customer represents and warrants to TPC that (i) Customer and/or its clients own all rights in, or have a right to sublicense the use of, any web site content provided to TPC by Customer and/or its clients, (ii) all Customer Content including web site content provided by Customer and/or its clients to TPC does not infringe the rights of any third party and does not contain libelous or defamatory statements, (iii) it has the full right, power and authority to enter into and perform under this Agreement, and to execute and deliver and perform any Proposal, SOW or SaaS Services Agreement, (iv) the person executing any such document is duly authorized by Customer, and (v) this Agreement and any related Proposal, SOW or SaaS Services Agreement constitutes a legal, valid and binding obligation of Customer.
9.2 By TPC TPC represents and warrants to Customer that (i) TPC owns all rights in, or has a right to license the use of TPC Training Systems Courseware, Pre- and Post-Tests, and TPC Online™ System, the Custom Web Site provided to Customer by TPC without known infringement on the rights of any third party, (ii) TPC owns all rights in, or has a right to grant to Customer access to the SaaS Software without known infringement on the rights of any third party (iii) it has the full right, power and authority to enter into and perform under this Agreement, and to execute and deliver and perform any Proposal, SOW or SaaS Services Agreement, (iv) the person executing any such document is duly authorized by TPC, and (v) this Agreement and any related Proposal, SOW or SaaS Services Agreement constitutes a legal, valid and binding obligation of TP. TPC shall perform TPC Services in a workmanlike manner in accordance with the SOW and Proposal or SaaS Services Agreement and generally accepted industry standards. Customer must notify TPC of any failure to so perform within ten (10) days after the date on which such failure first occurs.
9.3 Disclaimer and Exclusions: TPC PROVIDES TPC SERVICES “AS IS” AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. TPC DOES NOT WARRANT THAT THE SaaS SERVICES WILL BE UNINTERRUPTED FOR ANY REASON (INCLUDING INTERRUPTIONS CAUSED BY MALICIOUS INTERFERENCE BY UNAUTHORIZED PERSONNEL), ERROR-FREE OR WITHOUT DELAY AND SHALL NOT BE LIABLE FOR ANY LOSS OF DATA.
10.1 By Customer. Customer shall defend, indemnify and hold TPC harmless against any losses, damages, costs, fees (including reasonable and documented legal fees) and reasonable expenses incurred by and/or awarded against TPC as a result of or in connection with (i) any claim by any user relating to or arising from TPC Online or TPC Onsite course materials, (ii) any modification by Customer or any user to the TPC Online or TPC Onsite course materials, (iii) any claim that any materials or data provided by Customer to TPC (for use on the TPC Online website or TPC Onsite content, Saas Services or otherwise) infringes or misappropriates the intellectual property rights of any third party, (iv) use by Customer of the TPC Services, and (v) any breach or violation by Customer of the representations, warranties, covenants and terms of this Agreement and any related SOW or Proposal or SaaS Services Agreement.
10.2 By TPC. TPC shall defend, indemnify and hold Customer harmless against any losses, damages, costs, fees (including reasonable and documented legal fees) and reasonable expenses awarded against Customer, in the final determination of a court of competent jurisdiction, as a direct result of TPC’s gross negligence or willful misconduct in connection with its performance of the TPC Services; provided that any claim that Customer’s or End User’s use of any software, including the SaaS Software, infringes the U.S. patent, trademark, copyright, trade name or other intellectual property rights of a third party, except to the extent that such claim arises out of compliance with Customer’s designs, drawings, instructions, or other requirements; shall be subject solely to the provisions of Section 6.1 of this Agreement.
11 LIMITATIONS OF LIABILITY
11.1 THE TOTAL LIABILITY OF EACH OF TPC AND CUSTOMER, AND THEIR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, OR STRICT LIABILITY IN TORT, THAT ARISES OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TPC SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO THE LESSER OF (X) THE AMOUNT OF PROVEN DIRECT DAMAGES AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, AND (Y) AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT PAID BY CUSTOMER TO TPC FOR THE SPECIFIC TPC SERVICE FROM WHICH SUCH CLAIM ARISES, FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE SPECIFIC EVENT FROM WHICH THE CLAIM ARISES. NEITHER PARTY SHALL (A) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (B) BRING ANY CLAIM BASED ON PRODUCT OR SERVICE PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
11.2 FOR NEW JERSEY RESIDENTS, TO THE EXTENT ANY TERM HEREOF IS SUBJECT TO THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT (“TCCWNA”) AND SUCH TERM, IF ENFORCED AS PROVIDED HEREIN, IS CONTRARY TO OR VIOLATIVE OF ANY CLEARLY ESTABLISHED RIGHT YOU HAVE UNDER STATE OR FEDERAL LAW, SUCH OFFENDING TERM(S) SHALL BE DEEMED OMITTED FROM THESE TERMS (AND SUCH USER AGREEMENT), AND YOUR AGREEMENT TO THESE TERMS DOES NOT AND WILL NOT IN ANY WAY CONSTITUTE A WAIVER OF YOUR RIGHTS UNDER THE TCCWNA.
12.1 Related Agreements. In the event of any conflict or inconsistency between this Agreement and any Proposal or SOW or SaaS Services Agreement, this Agreement shall control, other than with respect to Section 5.1 (Term and Termination) and Section 8.1 (Payment). The provisions of this Agreement and any related Proposal, SOW or SaaS Services Agreement shall supersede and govern to the extent of any conflict or inconsistency with any purchase order or terms and conditions of sale of Customer.
12.2 Severability If any provision hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions.
12.3 Assignment Neither party shall assign, without the prior written consent of an authorized representative of the other, which consent shall not be unreasonably withheld, any right or interest hereunder (excepting moneys due or to become due) nor delegate any work or other obligation to be performed hereunder to any entity other than (with prior written notice to the other party) its corporate parent, or a division or wholly or majority owned subsidiary of the party or its corporate parent. Any such action or attempted action in violation of the foregoing shall be void. In the event of the sale of all or substantially all of the equity or assets of Customer, Customer shall deliver written notice thereof to TPC, together with the written undertaking of the purchaser or surviving entity which shall provide that such purchaser or surviving entity agrees to be fully bound by the terms and conditions of this Agreement and any related SOW or Proposal or SaaS Services Agreement. Following receipt of such notice, TPC shall have the option, to the extent that it reasonably determines that the creditworthiness of such purchaser or surviving entity is materially adversely different than Customer as of the Effective Date.
12.4 Similar Activities Nothing contained herein shall be construed as preventing either party from developing, acquiring, marketing, selling, supporting or maintaining products and/or services similar to those described herein, or from entering into similar agreements with other entities, provided that in so doing, there is no breach of obligations under Section 7 (Confidentiality).
12.5 Independent Contractors The parties shall act as independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party.
12.6 Equitable Relief TPC may, without limiting its other rights and remedies, be entitled to seek equitable relief, including but not limited to injunctive relief.
12.7 Governing Law and Compliance with Laws Each party shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances. This Agreement shall be governed by the laws of the State of Illinois, excluding its conflict-of-law rules. The parties further agree that all disputes under this Agreement will be exclusively resolved in the state or Federal courts located in Chicago, Illinois, U.S.A., hereby waive any jurisdictional or venue defenses otherwise available. This choice of jurisdiction and venue shall not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate alternative jurisdiction. In the event a suit or action with respect to this Agreement and any related SOW or Proposal is commenced, including actions for indemnification, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs.
12.8 No Waiver No waiver of any breach or default shall be effective against TPC unless in writing signed by TPC; and no such waiver shall constitute a waiver of (i) any other right or remedy hereunder, or (ii) any subsequent breach or default.
12.9 Force Majeure A party shall be excused for delays in the performance of its obligations hereunder due to causes beyond its reasonable control and that could not have been avoided through the exercise of reasonable care, such as acts of God, acts or omissions of civil or military authorities, fires, floods, epidemics, quarantine restrictions, war, riots, strikes, or the unavailability of necessary labor, materials, or manufacturing facilities (the “Force Majeure”). The party whose performance is being adversely affected shall (i) promptly notify the other of the nature of the Force Majeure and the obligations adversely affected thereby; (ii) make all reasonable efforts to resume performance as soon as is reasonably possible and mitigate the adverse effects of the Force Majeure. If the Force Majeure causes a delay of ninety (90) or more days from the original date of performance, the other party shall have the right to terminate this Agreement or the applicable Proposal or SOW or SaaS Services Agreement.
12.10 Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing and any notice hereunder shall be deemed duly given (i) if (and then three business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, (ii) if (and then one business day after) it is sent by Federal Express or similar nationally recognized overnight courier service, (iii) when transmitted by facsimile, provided an electronic acknowledgement of receipt is generated, or (iv) when sent by via electronic mail to an e-mail address, shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); in each case, provided the same is addressed to the intended recipient at the address last provided by such intended recipient (or to such other address as the intended recipient may request by way of an appropriate notice given in accordance with this Section 12.10).