IMPORTANT – PLEASE READ THIS AGREEMENT.
BY CLICKING TO ACCEPT THIS AGREEMENT, ORDERING A TRAINING COURSE OR ACCESSING OR USING ANY TRAINING MATERIALS, YOU AGREE TO BE BOUND BY THIS AGREEMENT WITHOUT MODIFICATION BY YOU. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ORDER ANY TRAINING COURSES OR ACCESS OR USE ANY TRAINING MATERIALS. IF YOU ARE ORDERING TRAINING COURSES OR TRAINING MATERIALS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A COMPANY, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES AND RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
This Training Services Agreement (“Agreement”) is entered into by and between Customer (as defined below) and Takari, Inc., a Delaware Corporation with offices at 50 King Street, Guelph, Ontario, Canada N1E 4P6 (“Takari”). The “Effective Date” of this Agreement is the date which is the earlier of (a) Takari’s initial provision of Training Courses and related Training Materials to Customer or (b) the effective date of the first Order Form referencing this Agreement. “Customer” or “you” means either you as an individual or your company, partnership or similar entity, if you are ordering Training Courses or Training Materials in your capacity as an employee, contractor or agent of such entity. The Agreement consists of the terms and conditions set forth below, any Order Forms (as defined below) and any policies referenced herein.
This Agreement permits Customer to purchase training courses (“Training Courses”) pursuant to Takari order forms (which may include online registration or order forms made available by or on behalf of Takari) referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which Training Courses will be delivered. This Agreement shall govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer which reference this Agreement.
From time to time, Takari may amend this Agreement. Unless otherwise specified by Takari, the version of the Agreement in effect on the date of Customer’s Order Form will govern such order.
1. General. Takari shall provide to Customer Training Courses for the number of attendees specified in the applicable Order Form. The Order Form will also specify the format, date(s) and time(s) for the Training Course. Training Course purchases are valid only for the specific date and time specified on applicable Order Form are are subject to availability. Customer must furnish Takari with the name and email address of each attendee. Training Courses are subject to the then-current version of Takari’s Training Changes & Cancellations Policy, currently available at http://takari.io/training-changes-cancellation-policy.html (“Change and Cancellation Policy”).
2. Use of Materials. As part of the Training Courses, Takari may provide Customer with access to the then-current version of Takari’s related training materials (“Training Materials”). Subject to the terms and conditions of this Agreement, Takari grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use one copy of such Training Materials per paid Training Course attendee for internal educational and training purposes only. A Training Course attendee may not share Training Materials with anyone else. Customer shall not: (a) copy the Training Materials or any portion thereof; (b) share, distribute, rent, sublicense or transfer any copies of the Training Materials, or portions thereof, with or to a third party or allow a third party to use the Training Materials; (c) modify, decompile, disassemble or reverse engineer any sample object code provided with the Training Materials; or (d) use the Training Materials to develop services or products for sale or include any components of the Training Materials in any product. Training Materials may contain or be provided with software components subject to the terms and conditions of “open source” licenses (“Open Source Software”). With respect to any Open Source Software, the terms of the applicable Open Source Software license will apply lieu of the license and restrictions in this Section 2.
3. Ownership of Training Materials. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Takari and its suppliers have and will retain all rights, title and interest in and to the Training Materials (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights). Customer acknowledges that it is obtaining only a limited license right to the Training Materials and that irrespective of any use of the words “purchase,” “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise. All copies, improvements, updates, modifications or enhancements of the Training Materials (including any modifications to sample files) shall remain the property of Takari (including any changes which incorporate any ideas, feedback or suggestions of Customer). All rights not granted by Takari are reserved.
4. Payment. Customer will pay Takari the amounts and at the times set forth on the applicable Order Form. Unless otherwise specified in the Order Form, all payments are due in Canadian dollars at the time of purchase. Except as expressly provided in the Change and Cancellation Policy, orders are non-cancellable by Customer and all fees paid for Training Courses are strictly non-refundable. Customer will be responsible for all taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Takari). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5. Confidential Information. In the course of their relationship, Takari may disclose to Customer information identified at the time of disclosure as confidential or that Customer should reasonably understand to be confidential or proprietary under the circumstances (“Confidential Information”). The Training Materials (including Customer feedback regarding the Training Materials) and information about Takari’s business and technology are Confidential Information of Takari. All Confidential Information shall remain the property of Takari, and Customer shall have no interest or rights in such except as expressly set forth in this Agreement. Customer agrees to maintain all Confidential Information in confidence and to take all reasonable precautions to prevent any unauthorized disclosure of such information. These restrictions on disclosure will not apply to any information which (a) becomes generally known or publicly available through no act or failure to act on the part of Customer; (b) is independently developed by Customer without use of Confidential Information as evidenced by its records; (c) is known by Customer at the time of receiving such information as evidenced by its records; or (d) is furnished to Customer by a third party, as a matter of right and without restriction on disclosure.
6. No Warranty. THE TRAINING COURSES AND TRAINING MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. Limitation of Liability. IN NO EVENT SHALL TAKARI BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TAKARI’S ENTIRE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TAKARI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
8. Term and Termination. This Agreement remains in effect for the Term specified above unless terminated in accordance with this Section 8. Either party may terminate this Agreement on ten (10) days’ written notice if no Order Form is in effect. In addition, either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Upon any expiration or termination of this Agreement, Customer shall promptly delete (or, at Takari’s request, return) any and all Confidential Information in its possession or control. However, Customer may retain its licensed copies of any Training Materials it received prior to termination, provided this Agreement was not terminated for Customer’s breach and Customer remains in compliance with all applicable restrictions herein. Sections 3 (Ownership of Training Materials), 4 (Payment), 5 (Confidential Information), 6 (No Warranty), 7 (Limitation of Liability), 8 (Term and Termination) and 9 (General) shall survive any termination or expiration of this Agreement.
9. General. This Agreement shall be governed by and construed under the laws of the State of California. Any suit or proceeding arising out of or relating to this Agreement shall be commenced exclusively in the state or federal courts in San Francisco, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. Customer acknowledges that Takari would not make available the Materials except on all the terms included herein, and accordingly Takari may terminate this Agreement and seek injunctive relief upon any breach. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. This Agreement may not be assigned or transferred by Customer without the prior written consent of Takari. Except as may be otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement. Any purported assignment or amendment in violation of the foregoing shall be void. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.