LEARNINGBRANCH MASTER SAAS AGREEMENT

Last Revised: May 26,  2020

THIS MASTER SAAS AGREEMENT (“AGREEMENT”) BETWEEN THE LEARNINGBRANCH INC. LEGAL ENTITY SIGNING AN ORDER FORM (COLLECTIVELY, “LEARNINGBRANCH”, “COMPANY”, “WE” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SERVICES UNDER THIS AGREEMENT AND/OR UNDER AN APPLICABLE ORDER FORM (“CUSTOMER” OR “YOU” AND TOGETHER WITH LEARNINGBRANCH, THE “PARTIES”) GOVERNS CUSTOMER’S ACCESS AND USE OF THE SERVICES.

BY ACCEPTING THIS AGREEMENT WHILE EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT CONNECT, ACCESS OR USE THE SERVICES IN ANY MANNER. ANY SOFTWARE PROVIDED IN CONNECTION WITH THE SERVICES IS BEING LICENSED AND NOT SOLD TO YOU.

BY ACCEPTING THE TERMS OF THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.

This Agreement is effective between Customer and LearningBranch as of the date of Customer’s accepting this Agreement (the “Effective Date”).

Preamble

LearningBranch has developed and owns a digital platform that provides speech- and text-based assessment and training,  user management, content management and delivery, artificial intelligence tools, reporting, and analytics for the purpose of improving the end-users’ and employees’ knowledge and communication skills; Such solutions are provided to customers on a Software as a Service (SaaS) basis; and

This Agreement governs the Parties’ relation in connection with Customer’s subscription, access to, and use of the Service (as further defined below).

  1. General

Customer will subscribe to the LearningBranch’s Service by executing an order form which shall define: (i) the subscription term; (ii) the applicable LearningBranch solution to which Customer subscribes (including its modules and features and the digital platform for which it would be used); (iii) the consideration to be paid by Customer; (iv) where applicable – certain usage limits, such as the number of End Users (as defined below) to whom the Service can be made available on a monthly or yearly basis; (v) where applicable – the provision of Professional Services (as defined below); and (vi) any other subscription terms that may be agreed upon by the Parties (“Order Form(s)”). Upon expiration of an applicable subscription period, the applicable Order Form may be renewed and/or replaced by a new Order Form subject to the terms defined therein.

LearningBranch’s Service as specified and defined in an applicable Order Form shall be referred to as the “Service”.

Each Order Form executed by the Parties is governed by this Agreement and is subject thereto. In the event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail.

  1. Right to Use the Service

2.1. Right to Use the Service. Subject to the terms and conditions of this Agreement and of an applicable Order Form then in force, LearningBranch grants to Customer a non-exclusive, non-transferable, non-sub-licensable, limited right to access and use the Service during the subscription term, and in accordance with the usage terms set forth herein and in the applicable Order Form.

For the purpose of this Agreement, “End-User(s)” means individual(s) for whom LearningBranch’s code loads.

2.2. Usage Restrictions. Other than the rights expressly specified in this Agreement and in an applicable Order Form, no other right or interest whatsoever is granted to Customer in connection with the Service or to the solutions to which it provides access. Without limiting the foregoing, Customer may not: (i) use the Service for purposes other than the purposes for which it is intended as defined in this Agreement and/or the applicable Order Form; (ii); rent, lease, lend, sell, sublicense, assign, distribute, or transfer in whole or in part the right to use the Service or any part thereof; (iii) bypass or breach any security device or protection used by the Service; (iv) input, upload, transmit, or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or that contain, transmit, or activate any harmful code; (v) use the Service in any illegal manner or in any way that infringes the right of any third party. In addition, in the event the Order Form limits the usage to a certain number of End Users, Customer shall ensure that the quantity of End Users who may access and use the Service in any given calendar month, or year, will not exceed the quantity set forth in the Order Form.

2.3. End Users’ Consent. Customer will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the Service available to the End Users, including without limitation pursuant to the terms of Section 5.3 below.

2.4 User Accounts. User accounts may not be shared or used by more than one person; provided that, upon request to LearningBranch, User account allocations (as set out in the Services Agreement) may be reassigned from Users who are no longer accessing the Platform Service to new Users. LearningBranch will promptly report to the Customer any unauthorized use of the User accounts of which it becomes aware. The Customer is responsible for all activities that occur in User accounts and for its Users’ compliance with this Agreement, including maintaining the security and confidentiality of all User passwords. The Customer will be responsible for preventing unauthorized access to, or use of, the Platform Service and will notify LearningBranch promptly of any such unauthorized access or use.

2.4 Incremental Third Party Services. From time to time, certain additional third-party functionality may be made available by LearningBranch to the Customer as described in the Sales Agreement (the “Third-Party Functionality”). All Third Party Functionality is licensed pursuant to separate license terms specified by the third-party provider of such functionality, and not under this Agreement, and is not part of the Platform Services or the LearningBranch Platform. Such Third-Party Functionality will be governed by the terms specified by the third-party provider of such functionality and such third-party terms form a separate agreement between the Customer and the applicable third-party provider. Notwithstanding anything to the contrary in the Agreement, LearningBranch is not a party to such agreement and is not responsible for such Third-Party Functionality. All rights, title, and interest (including intellectual property rights) in and to such Third Party Functionality, and any updates, enhancements or other modifications thereto and thereof, is retained by the applicable third-party provider. Notwithstanding Section 13.9 in the event of any inconsistency between the terms and conditions of this Agreement, such third-party terms will prevail in respect of the Third Party Functionality.

2.5 Modifications. LearningBranch reserves the right to make corrections, modifications, and enhancements to the Platform Services, and LearningBranch reserves the right to substitute different technology used as part of the Platform Services as long as such substitution does not have any material adverse effect on system performance or the provision of the Platform Services, including the information and format that the Customer can access. Notwithstanding anything to the contrary in this Agreement, LearningBranch reserves the right to make updates and modifications to the Platform Services in accordance with LearningBranch’s technology upgrade roadmap.

2.6 Suspension of Access; Scheduled Downtime; Modifications. LearningBranch may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (i) suspend the Customer’s access to or use of the Platform Services for scheduled maintenance, due to a force majeure, if LearningBranch believes in good faith that the Customer or any User has violated any provision of this Agreement, to address any emergency security concerns, or if required to do so by a regulatory body or as a result of a change in applicable law; and (ii) make any Modifications to the Platform Services.

2.7 Support and SLAs. LearningBranch will use commercially reasonable efforts to provide the Platform Services in accordance with the LearningBranch support terms and service level availability (SLA) policy, as updated by LearningBranch from time to time.

  1. Professional Services

If an applicable Order Form includes the provision of certain professional services (which can include implementation, training with respect to the use of the Service, or assistance in creating Outputs (as defined below)) (“Professional Services”), then such services shall be provided in accordance with the Statement of Work to be attached to the Order Form (“SOW”).

The Professional Services shall be provided remotely by LearningBranch. 

  1. Consideration, Taxes and Payment 

4.1. Consideration. The Customer will timely pay all fees for the Service (“Subscription Fees”), as specified in an applicable Order Form, and all fees for the Professional Services as set forth in the applicable SOW, or in the Order Form, as applicable. 

4.2. Subscription Fees. The Subscription Fees constitute the consideration for the LearningBranch solution, including the specified modules and features and the digital platform explicitly identified in the Order Form. Except as otherwise specified herein or in an Order Form: (i) the fees for the Service are based on the Service purchased and not on actual usage thereof, and fees paid are non-refundable; and (ii) Service ordered under an applicable Order Form and their respective payment obligations are non-cancelable. Notwithstanding the aforementioned, in an event of termination for cause according to Section 11.2. below, due to a material breach by LearningBranch, the foregoing shall not apply to amounts paid for the Service in advance, but which are unused on the date of termination (calculated on a pro-rata basis of the balance period between the termination date and the original term of the applicable Order Form), which may be refundable.

4.3. Invoicing.  Except as otherwise specified in this Agreement, fees for the Services will be invoiced on a yearly basis. Unless otherwise stated in an invoice, charges are immediately due on the invoice date. The Customer is responsible for maintaining complete and accurate billing and contact information with LearningBranch.

4.4. Taxes. LearningBranch’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If LearningBranch has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4, LearningBranch will invoice Customer and Customer will pay that amount unless Customer provides LearningBranch with a valid tax exemption certificate authorized by the appropriate taxing authority. To the extent Customer is required by law to withhold income-based taxes based upon the fees hereunder, Customer will deduct such tax from the fees payable to LearningBranch and remit them to the appropriate government authorities; provided that Customer sends LearningBranch a receipt showing the payment of such Tax, and provides LearningBranch with reasonable support and with sufficient evidence to enable LearningBranch to obtain any credits available to it. For clarity, LearningBranch is solely responsible for Taxes assessable against it based on its income, property and employees.

4.6 Audit Rights. LearningBranch will have the right to use the capabilities of the Platform Services to audit the Customer’s use of the Platform Services and compliance with this Agreement.

4.7 Suspension of Service. If the Customer’s account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, LearningBranch will have the right to suspend the Services provided to the Customer, without liability to the Customer, until such amounts are paid in full. LearningBranch may also, in its sole discretion, immediately suspend the Payment Service if sufficient Customer funds are not available to make the designated payments.

4.8 Fee Changes. No more than once per calendar year and upon not less than sixty (60) days prior written notice to the Customer, LearningBranch may increase the fees for the Services, and such revised prices will become applicable to the Customer for the next billing period after the notice period.

4.9 Late Payments. Any late payment will, in LearningBranch’s discretion, be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

  1. Privacy and Data Protection; Security

5.1. Collection and Storage by LearningBranch. For the purpose of providing the Service, the ongoing operation thereof, and/or for security purposes, LearningBranch collects, processes and stores (i) data and/or metadata of End Users which may be considered as personally identifiable information by some jurisdictions (such as IP addresses in logs of End Users, and general End Users’ geolocation (only country and city); (ii) e-mail addresses of Customer’s personnel who use the Service to create Outputs, or who may contact LearningBranch in connection with the provision of support; all as more fully described in LearningBranch’s privacy policies available at https://www.LearningBranch.com/privacy-policy (“Privacy Policy”) which is hereby incorporated by reference to this Agreement.

5.2. Collection and Storage Based on Customer’s Instructions. Additionally, LearningBranch may collect, store and process additional personal information in the course of the use of special features of the Service by Customer, as detailed in the Privacy Policy. In such event, such personal information would be collected, stored and processed only for Customer’s benefit, and according to Customer’s documented instructions and under LearningBranch’s Privacy Policy (“Privacy Policy”) available at https://www.LearningBranch.com/privacy-policy.

5.3. Customer’s Undertakings. Customer shall be solely responsible for obtaining all consents and authorizations as may be required by any applicable law, for the collection, storage and processing of information and/or sensitive information by LearningBranch according to Customer’s instructions.

5.4. Security. LearningBranch complies with security standards, such as encryption of data in motion over public networks and auditing standards (such as SOC 2 and ISO 27001). All connections to LearningBranch data are encrypted with industry-standard AES-256 bit encryption. This was established by the U.S. National Institute of Standards and Technology (NIST) and uses SHA-2 to ensure data integrity. Furthermore, Customer’s information is stored with logical separation from the information of other customers. In addition, LearningBranch shall have in place and shall comply with documented written policies and procedures, periodically reviewed, covering the administrative, physical and technical safeguards in place and relevant to the access, use, loss, alteration, disclosure, storage, destruction and control of information. Such policies and procedures will include encryption of data; all as more fully described in LearningBranch’s privacy policies available at https://www.LearningBranch.com/privacy-policy (“Privacy Policy”) which is hereby incorporated by reference to this Agreement.

5.5. Changes in the Privacy Policy. The terms of this Privacy Policy may change from time to time. We reserve the right, at our discretion, to change, modify, add to, or remove parts from our Privacy Policy. If we make material changes to how we treat your personal information, we will notify you (via the Service or to the email address specified through your account). 

If you are concerned about this Privacy Policy, you should read it each time before you use our websites. 

Your continued use of our websites constitutes your consent to such revised Privacy Policy.

  1. Proprietary Rights

6.1. LearningBranch’s Rights. LearningBranch owns and shall retain all right, title, and interest, including Intellectual Property Rights (as defined below), in and to the Service and the solutions provided thereby, and all the underlying software and technology, all as may be updated, improved, modified or enhanced from time to time; and further, in and to the brand names, logos and trademarks related to the foregoing. In addition, subject to Customer’s ownership rights pursuant to Section 6.2 below, LearningBranch owns and shall retain all rights, including Intellectual Property Rights in and to the Outputs of the Service, generated by LearningBranch, including the content created by LearningBranch and the default designs and “look and feel” thereof.

For the purpose of this Agreement, “Intellectual Property Rights” means any and all intellectual property rights, whether registered or not, worldwide including, without limitation, all the following: (i) copyrights, including moral rights, registrations and applications for registration thereof; (ii) computer software programs, data and documentation; (iii) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; and (iv) trademarks, trademark applications, domain names, trade secrets and Confidential Information (as defined below).

“Outputs” shall mean the interactive on-line guidance indicators deployed by the Service, to provide guidance and assistance to End Users in acting and reacting (including by progressing through a process) within an applicable digital platform or application.

6.2. Customer’s Ownership. Customer owns and shall retain all right title and interest in and to the Content (as defined below) which is (i) provided by Customer to LearningBranch for the purpose of the provision of the Service and/or the Professional Services; (ii) created by Customer using the Service; and/or (iii) to the extent applicable, created by LearningBranch specifically for Customer under the provision of Professional Services, and which incorporates or is based on Customer’s copyrighted work and/or Customer’s Confidential Information or other Customer Content according to sub-sections (i) and (ii) above (“Customer Content”). Customer Content specifically excludes Content provided by LearningBranch which does not use Customer Content, the Outputs’ “look and feel”, and LearningBranch’s Confidential Information and Intellectual Property.

“Content” means content such as text, data, images, photographs, video, audio, and similar types of content used in, or for creating, Outputs.

6.3. Customer hereby grants to LearningBranch a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to use the Customer Content and its affiliates solely for the purpose of providing the Service to said Customer pursuant to this Agreement and the applicable Order Form.

6.4. Feedback. LearningBranch may, at its discretion and for any purpose, freely use, modify, and incorporate into its Service any feedback, comments, or suggestions provided by Customer or End Users (other than Customer Content), if any, without any additional obligation of LearningBranch to Customer or the applicable End Users.

  1. Warranty

7.1. Representations. LearningBranch represents and warrants to Customer that (i) during the term of each applicable Order Form, the Service will substantially conform to the specifications as set forth in such Order Form; and (ii) the Professional Services performed by or on behalf of LearningBranch under this Agreement will be performed in a professional and workmanlike manner and by personnel that has the necessary skills, training and background to perform such Services.

7.2. Exclusive Warranty. THE WARRANTIES CONTAINED IN THIS SECTION ‎7 ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING BY A COURSE OF DEALING OR USAGE OF TRADE. THIS SECTION DOES NOT LIMIT, AND IS WITHOUT PREJUDICE TO, THE PROVISIONS OF SECTION ‎10 BELOW.

  1. Indemnification by LearningBranch

8.1. Indemnification obligation. LearningBranch will defend Customer from and against any claim by a third party against Customer to the extent the claim is based on an allegation that the Service or the solution provided by it, infringes upon, or misappropriation, any Intellectual Property Rights of a third party (“Infringement Claim”), and shall indemnify Customer against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) awarded by a competent court, arbitrator/s, or in a settlement, as a result of such claim by a third party; provided that (i) Customer has notified LearningBranch promptly in writing of such claim; (ii) Customer has provided LearningBranch with the authority to control and handle the claim including the defence and settlement of such claim; and (iii) Customer provides to LearningBranch all information and assistance (at LearningBranch’s expense) as may be required for that purpose.

8.2. Exclusions. In no event will LearningBranch have any obligation or liability under this Section 8 arising from: (i) use of any Service in a modified form or in combination with materials not furnished by LearningBranch; (ii) any Customer Content; (iii) any failure by Customer to comply with Customer’s responsibilities under this Agreement; and (iv) use by LearningBranch of any equipment provided by Customer and per Customer’s instructions, for the provision of the Professional Services.

8.3. Remedial Actions. In the event that the Service or any part thereof is likely to, in LearningBranch’s sole opinion, or does become the subject of an Infringement Claim, LearningBranch may, at its option and expense: (i) procure for Customer the right to continue using the Service (including the allegedly infringing portion/item); (ii) substitute a functionally equivalent non-infringing replacement for such allegedly infringing portion of the Service or otherwise modify it to make it non-infringing and functionally equivalent; or (iii) terminate the Agreement and any outstanding Order Form and refund to Customer fees paid to LearningBranch for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Service due to such Infringement Claim and the remaining days in the current subscription term.

8.4. Sole Remedy. Without derogating from the provisions of Section 10 below, this Section ‎8 sets forth the exclusive and entire remedy of Customer with respect to any Infringement Claims.

  1. Customer’s Responsibilities

In addition to any other undertaking or responsibility of Customer as set forth in this Agreement, any applicable Order Form, SOW or an exhibit hereto or thereto, Customer shall be solely responsible and liable for, and in connection with: (i) the manner in which Customer and the End Users use the Service (ii) Customer Content, including without limitation Customer’s rights to use such Content in connection with the Service; (iii) information, data or other Content provided by End Users; and/or (iv) compliance by Customer with any and all applicable laws and with third parties’ rights in connection with the foregoing.

  1. Limitation of Liability

10.1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LEARNINGBRANCH BE LIABLE UNDER THIS AGREEMENT FOR (i) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (ii) FOR LOSS OF USE, BUSINESS, REVENUES, OR PROFITS; IN EACH CASE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR AS SET FORTH BELOW IN THIS SECTION 10.2, LEARNINGBRANCH’S AGGREGATE LIABILITY UNDER EACH ORDER FORM SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE ORDER FORM, AND LEARNINGBRANCH’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY (“LIABILITY CAP”).

NOTWITHSTANDING THE ABOVE, LEARNINGBRANCH’S LIABILITY (I) IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION ‎‎8 ABOVE OR (II) FOR BREACH OF ITS PRIVACY AND DATA PROTECTION OBLIGATIONS UNDER SECTION 5 – SHALL BE LIMITED TO THREE TIMES (3X) THE APPLICABLE LIABILITY CAP, PROVIDED HOWEVER, THAT A FINE OR CHARGE SET BY A REGULATORY AUTHORITY ACCORDING TO LAW FOR, OR DUE SOLELY TO, BREACH BY LEARNINGBRANCH OF DATA PROTECTION AND SECURITY OBLIGATIONS SHALL BE BORNE BY LEARNINGBRANCH REGARDLESS OF THE CAP ON LIABILITY.

  1. Term, Termination and Suspension of Service

11.1. Term. This Agreement commences on the Effective Date and will remain in effect for so long as Customer has an applicable Order Form in effect, unless otherwise terminated in accordance with the provisions herein.

11.2. Termination. Either LearningBranch or Customer may terminate this Agreement and any Order Form thereunder, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. LearningBranch shall also have the right to terminate this Agreement according to the provisions of Section ‎13.2.3.

11.3. Effects of Termination. In any event of termination of this Agreement by either Party:

11.3.1. All rights granted hereunder shall immediately expire and any and all use and/or exploitation by Customer and/or on its behalf of the Services, and any part thereof, shall immediately cease and expire.

11.3.2. Provisions contained in this Agreement that are expressed or by their sense and context are intended to survive the termination of this Agreement shall so survive the termination, including without limitation Section ‎4 (Consideration due for the period prior to termination), Section 5 (Privacy, with respect to the period prior to termination) and Sections 6 through 13 (inclusive).

11.4. Suspension of Service. LearningBranch reserves the right to monitor the use of the Service for security and operational purposes. LearningBranch may suspend or otherwise deny Customer’s or any other person’s access to or use of all or any part of the Services for security reasons if LearningBranch believes, in its reasonable discretion, that any third party has gained unauthorized access to any portion of the Subscription Services using any credential issued by LearningBranch to Customer or its End Users.

  1. Confidentiality

12.1. For the purpose of this Agreement, “Confidential Information” means any non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), that is designated in writing as confidential or if disclosed orally – is reduced to writing and titled as “confidential” within 15 days following the disclosure and sharing with the Receiving Party. Confidential Information shall include, but is not limited to, technological information such as know-how, software, data, programs, inventions, ideas, processes, formulas, developments, designs, materials, business information such as marketing and selling, budgets, prices and costs, information about the Disclosing Party’s employees, Affiliates, suppliers and customers, and trade secrets. Confidential Information does not include information that is: (i) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of breach or negligence by the Receiving Party; (ii) already known by the Receiving Party prior to its receipt from the Disclosing Party; (iii) independently developed at any time by the Receiving Party without use of or reference to Confidential Information; (iv) rightfully obtained by the Receiving Party from other unrestricted sources.

12.2. Protection of Confidential Information. All Confidential Information delivered, made available or otherwise acquired pursuant to this Agreement shall (i) not be copied, distributed, disseminated or made available in any way or form by Receiving Party without the prior written consent of the Disclosing Party; (ii) be maintained in strict confidence using the same degree of care that the Receiving Party takes to protect its own confidential information, but in no event less than reasonable care; (iii) may only be disclosed to those employees, contractors and/or service providers of Receiving Party who have a need to know in connection with purposes consistent with this Agreement, and who are bound by a written obligation of confidentiality no less restrictive as those set forth herein; and (iv) shall not be used by Receiving Party for any purpose, except for the purposes of this Agreement, without the prior written consent of the Disclosing Party. For the avoidance of doubt, Confidential Information including personal information collected through the use of the Services shall be used, collected, retained, processed and deleted in accordance with the provisions of Section 5 above.

12.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

12.4. Expiration. The provisions of this Section 12 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years or for seven (7) years following their disclosure, whichever is earlier.

  1. Miscellaneous.

13.1. Entire Agreement. This Agreement, including all exhibits hereto and all applicable Order Forms, constitute the entire agreement between Customer and LearningBranch with respect to the subject matter of this Agreement and supersede and replace any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement, including previous non-disclosure agreements between the Parties.

13.2. Assignment; Change of Control.

13.2.1. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent, not to be unreasonably withheld; such consent shall not, however, be required, in connection with an assignment to an affiliate or a successor in interest in connection with any merger, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets as long as such successor or assignee of this Agreement agrees in writing to be bound by this Agreement and by the terms of any outstanding Order Form.

13.2.2. In any event of an assignment by a Party to this Agreement, or of any other form of Change of Control, the assigning Party or the Party undergoing a Change of control, as applicable, will notify the other Party in writing immediately upon the consummation of such event (“Assignment Notice”).

For the purpose hereof a “Change of Control” means that a Party has undergone a change of control transaction, such that the holders of the such Party’s outstanding stock capital, as of immediately prior to such transaction, owning less than 50% of the voting power of the surviving or resulting entity’s outstanding stock capital immediately after such transaction.

13.2.3. Notwithstanding anything to the contrary in this Section 13.2, in the event that Customer had subscribed to the Service for an unlimited number of End Users, per an applicable Order Form, and such Customer has assigned this Agreement in accordance with Section 13.2.1 above, or has undergone a Change of Control, LearningBranch shall have the right (but not the obligation) to terminate this Agreement at will, upon a thirty (30) days prior written notice, within the ninety (90) days following receipt of an Assignment Notice.

13.3 Governing Law; This Agreement,  including its exhibits, the Order Forms and SOWs will be governed by the laws of the Province of British Columbia, Canada, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of British Columbia. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.  

13.4 Governing Language; The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties aux présentes confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglais seulement.

13.5 Venue; Waiver of Jury Trial. The provincial and federal courts located in British Columbia, Canada, will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.  Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

13.6 Force Majeure. Except for payment obligations, neither party will be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

13.7. Export Restrictions. The Services and other technology LearningBranch makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

13.8. Other Provisions. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and may be delivered by courier, sent by registered letter, and shall be effective upon receipt or if sent by email, upon proof of being sent. Any notice to either Party shall be sent to the contact information listed in the applicable Order Form. A copy of notices to LearningBranch shall also be sent to legal@LearningBranch.com.

No failure or delay by any Party at any time to enforce one or more of the terms, conditions or obligations of this Agreement will (i) constitute waiver of such term, condition or obligation; (ii) preclude such Party from requiring performance by the other Party at any later time; or (iii) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.

13.9 Relationships of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties.

In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase orders issued by Customer with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement or any Order Form.

Contacting us.

Should you have any questions or concerns about this Master SAAS Agreement, please contact us at legal@learningbranch.com or at the following address: LearningBranch Inc., Suite 252, 1489 Marine Dr., W Vancouver, BC, V7T 1B8 and provide us with information relating to your concern.

Last updated: May 26th, 2020.