All use of the Tortal Training Learning Management System (“Tortal LMS”) hereby is subject to the terms and conditions set forth below:
1. Tortal reserves the right to change the terms of this User Agreement at any time same and will become effective immediately upon posting. Use of the Tortal LMS following the posting of any changes to these terms and conditions constitutes acceptance of those changes by the User.
2. User is entitled to use the Tortal LMS at no charge, with the limitation that such use is limited to no more than ten (10) individual users on User’s account. Tortal reserves the right to make changes to the fee structure hereunder at any time. Tortal shall provide User with six months’ notice of any such pricing changes. In consideration hereof, User acknowledges and agrees that Tortal may identify User as a Tortal customer within its marketing materials.
3. Term. This agreement has no fixed termination date, and which will continue to be in effect until either User or Tortal terminates same.
4. Ownership of Work. At all times Tortal shall own the Tortal LMS, and nothing in this agreement shall serve to assign or grant to User a legal or ownership right in the LMS and/or to any intellectual property of Tortal. User agrees to honor the intellectual property rights of Tortal.
5. Termination. Tortal shall have the right to immediately terminate this Agreement in the event of any breach by a User of this agreement. Tortal may discontinue or change Tortal LMS, or its availability to you, at any time and for any reason. Tortal reserves the right to terminate this agreement if and when there has been no use made of Tortal LMS over a ninety (90) day period.
6. Warranties, Disclaimer and Limitations.
6.01 ALL THE INFORMATION CONTAINED IN THE TORTAL LMS IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OR GUARANTEE OF ANY KIND AND THIS AGREEMENT EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION: A) ANY WARRANTY THAT THE LEARNING MANAGEMENT SYSTEM IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; B) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND C) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
6.02 NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TORTAL’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TORTAL UNDER THIS AGREEMENT.
6.01 User (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless Tortal (the “Indemnified Party”), its affiliates, officers, directors, shareholders, employees, agents, franchisees, area directors, representatives, attorneys, and their successors and assigns, from and against any and all claims, demands, actions or causes of action whether in law or in equity, suits, liens, rights, dues, debts, complaints, damages, liabilities, judgments, costs and attorneys’ fees, which may be brought or made against the Indemnified Party or which the Indemnified Party may sustain, pay or incur as a result of or in connection with: (a) the User’s use of the Tortal LMS; (b) any breach or non-observance by the Indemnifying Party of any covenant required to be performed or observed by it under this Agreement; (c) any damage to property or injury to a person or persons occasioned by the Indemnifying Party; or (d) any infringement by User of any third-party’s copyright or trademark rights.
8.01 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
8.02 Independent status. Nothing in this Agreement shall be deemed to create an employee/employer, principal/agent, or joint venture relationship between the parties. Neither party shall have the authority to bind the other party or enter into any arrangements or contracts on behalf of the other party.
8.03 Arbitration and Venue. Any dispute or controversy arising out of or in connection with this Agreement shall be resolved through arbitration in accordance with the rules of the American Arbitration Association, by the appointment of a single arbitrator to be agreed between the parties. This provision shall not prohibit either party from commencing a civil action for the purpose of seeking a temporary restraining order or preliminary injunction. Any such arbitration or civil action commenced by the Customer shall be brought within the Commonwealth of Massachusetts.
8.04 Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE. EITHER PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS PROVISION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THE PARTIES THERETO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
8.05 Costs and Attorneys’ Fees. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorneys’ fees and costs.
8.06 Entire Agreement. This Agreement, and any appended Scope of Work and exhibits attached hereto or thereto, constitute the entire agreement of the parties relative to the subject matter contained herein and it shall supersede all prior created agreements, representations, and understandings whether in writing or orally made.
8.07 Severability. If any paragraph, portion thereof, or part of this Agreement is invalid, it shall not affect the remainder of this Agreement, but shall be severable, and the remainder shall be binding and effective.
8.08 Waiver. No provision of this Agreement shall be deemed to have been waived, except if such waiver is contained in a written instrument executed by the party against whom such waiver is to be enforced. No delay or failure to exercise any right or remedy provided for herein shall be deemed to be a waiver thereof or acquiescence in the event giving rise to such right or remedy, and every such right and remedy may be exercised from time to time and so often as may be deemed expedient by the party exercising such right or remedy. No waiver by a party of any term or condition of this Agreement, or breach of or default thereunder, shall constitute a waiver by such party of any prior, concurrent or subsequent breach or default of the same or any other term or condition of this Agreement.