Date of Last Revision: December 12, 2024
These License Terms (“Terms”) govern access to and use of proprietary training materials (“Materials”) made available by The Expert Talk Inc. (“Provider”) to the party who has accepted these Terms (“Customer”). Customer shall be deemed to have accepted these Terms upon the earliest to occur of any of the following by Customer, its agents or representatives (the “Effective Date”): (1) written or electronic acknowledgment or acceptance of these Terms, including execution of any Provider’s order documentation incorporating these Terms by reference (“Order”); (2) downloading, accessing, or using Materials; or (3) transmission of Materials by Provider to Customer. Provider and Customer are hereby referred to individually as a “party” and collectively as the “parties”. Together the Terms and the terms of any Order will constitute the “agreement” in respect of the Materials made available by Provider.
Provider may revise these Terms at any time at its sole discretion and will provide notice of updated Terms by changing the “Last Updated” date above. Any non-material changes to these Terms will become effective on the date the change is posted. For any new orders for Materials (either by prospective Customers or by existing Customers who are renewing their Term), any material changes to these Terms will be effective immediately. For existing Customers, the version of the Terms accepted by the Customer when they ordered Materials shall continue to govern for the duration of their initial Term.
1. Receipt of Materials.
a. License to Materials. Subject to these Terms, during the Term, Provider grants Customer a non-exclusive, non-transferable, limited license to use the Materials solely for informational and educational purposes and for internal use only (the “License”). The License shall be subject to any additional conditions or restrictions specified in an Order.
b. Users. The License includes the right to sublicense the Materials to authorized users within Customer’s enterprise (“Users”). Any act or omission relating to these Terms by a User shall be deemed an act or omission of Customer.
c. Reservation of Rights. Except for the License, Provider and its licensors retain all rights to the Materials, including any enhancements and/or modifications thereto. Customer shall not (or permit a User or any third party to) impair Provider’s right in and title to the Materials. Any use of the Materials other than as specifically authorized herein, without the prior written permission of Provider, is strictly prohibited and will terminate the License granted herein.
d. Restrictions. Customer shall not (and shall not allow any User or a third party to): (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit the Materials, or make the Materials available to any third party; (ii) copy, modify, or create derivative works from any part of the Materials; (iii) use the Materials in order to build a competing product or service; or (iv) remove any proprietary notices, labels, or marks from the Materials.
2. Delivery of Materials.
a. Access. Materials may be provided to Customer (i) via an executable electronic file, (ii) via hyperlink, or (iii) via Customer’s learning management software. Unless the parties mutually agree upon a different Fee payment schedule in writing, delivery of Materials is contingent on Customer’s full payment of Fees invoiced under the applicable Order. Customer is solely responsible for managing any setup of hardware and software required to access the Materials. Delivery of Materials may require additional implementation services which will be set out in an Order.
b. Content Delivery. Provider shall not be responsible for training Customer regarding the Materials or the content thereof or for presenting or otherwise delivering the Materials beyond providing Customer access, as set out in Section 2a.
c. Updates. Provider may, from time to time, update Materials, notify Customer of the update and provide Customer the updated Materials. For clarity, nothing in these Terms shall require Provider to update Materials.
3. Warranties and Disclaimers.
a. Warranties. Each party warrants that it has the legal power to enter into these Terms and meet its obligations hereunder. Provider warrants that it has the right to grant Customer the License. Customer warrants that (I) it shall (and shall require all Users to) stop accessing and using the Materials and shall delete any locally saved Materials at the end of the Term; and (II) it shall use Materials in accordance with applicable laws and in accordance with the terms of this agreement.
b. Disclaimer. Except as expressly provided in Section 3a, Provider makes no representations and provides no warranties or conditions of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied representations, warranties and/or conditions, including any representations, warranties and/or conditions of merchantability, merchantable quality, durability, title, non-infringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law. The Materials are provided "as is". Provider does not represent or warrant that the Materials will be accurate, complete, unique, or original.
4. Fees and Payment.
a. Fees. Customer shall pay Provider all applicable fees for the Materials (“Fees”) as specified in the applicable executed Order. Fees shall be invoiced to Customer and all amounts are payable in the currency specified in the applicable Order or, if not specified, in CAD dollars. Unless otherwise stated in an invoice, invoiced Fees are due net thirty (30) days from the invoice date.
b. Overdue Payments. Any Fees not received from Customer by the applicable due date may accrue, at Provider’s discretion, late charges at the rate of 1.0% of the outstanding balance per month (12% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
c. Taxes. Fees do not include any direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties or similar governmental assessments of any nature ("Taxes"). Customer is responsible for paying all Taxes associated with its purchases of Materials, excluding taxes based on Provider’s net income or property.
5. Term and Termination.
a. General. This agreement shall commence as of the Effective Date and shall continue for the period specified in the applicable Order (“Term”). Provider may terminate this agreement (i) for cause upon fifteen (15) days written notice of a material breach of this agreement to Customer if such breach remains uncured at the expiration of such notice period; (ii) for cause upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or (iii) for convenience upon 30 days prior written notice.
b. Effect of Termination. Upon termination, except as expressly set forth herein, all licenses and rights granted to Customer hereunder shall terminate. Termination shall not limit Customer’s obligation to pay Fees owing up to the effective date of termination. Upon termination, Customer shall (and shall require all Users) to stop accessing and using the Materials and shall delete any locally saved Materials. The following provisions shall survive any termination or expiration of these Terms: 1c, 1d, 3, 4, 5c, 6-8.
6. Mutual Indemnity.
a. Provider Indemnity. Provider shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Materials as provided by Provider to Customer and used in accordance with the terms of this agreement, infringe or misappropriate any intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Provider and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Provider: (i) Customer shall notify Provider promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Provider sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Provider in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Provider’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
b. Exclusions. The obligations in Sections 6a do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any intellectual property rights relating to products, software or services not provided by Provider; or (ii) any IP Claim related to any use of Materials outside the scope of these Terms or an Order.
c. Customer Indemnity. Customer shall defend, indemnify and hold Provider and its affiliates and representatives (“Provider Indemnitees”) harmless against any and all claims, actions, allegations, damages, losses, liabilities and expenses, whether direct or indirect, that Provider Indemnitees or any related party may sustain as a result of any acts, errors or omissions of Customer or Users, including but not limited to: (i) breach of any representations or warranties under these Terms; or (ii) negligence or other tortious conduct, or willful misconduct (“Customer Claim”). As conditions for such defense and indemnification by Customer: (I) Provider shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (II) Provider shall give Customer sole control of the defense and settlement of such Customer Claims; (III) Provider shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (IV) Provider shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto. Customer acknowledges that for the purpose of this Section 6d, Provider is acting as agent of Provider Indemnitees.
7. Limitation of Liability. In no event shall Provider have any liability to Customer for any indirect, special, incidental, or consequential damages, however caused and whether in contract, tort (including negligence) or under any other theory of liability, whether or not the party has been advised of the possibility of such damages. Except for damages arising from Customer’s infringement of Provider’s intellectual property rights; (ii) any claims for non-payment; or (iv) Customer’s indemnification obligations pursuant to these Terms, in no event shall Provider’s aggregate liability under the agreement exceed the Fees actually paid by and due from Customer to Provider in the six months preceding the incident giving rise to liability.
8. General Provisions. These Terms, together with any Order, constitute the entire agreement between the parties relating to the Materials. If any part of the agreement is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. The failure of Provider to exercise or enforce any right or provision under the agreement shall not constitute a waiver of such right or provision. Any waiver of any right or provision by Provider must be in writing and shall only apply to the specific instance identified in such writing. Customer may not assign the agreement, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise, without Provider’s prior written consent. Provider may assign the agreement without Customer’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Provider’s business, shares or assets. Any dispute or claim arising out of or in connection with the agreement will be governed and interpreted by and under the laws of the Province of Ontario, Canada and the Federal laws applicable therein without giving effect to any conflict of laws principles. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the agreement.