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Twelve Fifteen LLC Online Services Agreement
Article 1. Customer’s Use of the Services
1.1 Provision of the Services. Twelve Fifteen will make available to Customer on a limited basis for the Term the Services, based on the type of program plan purchased from the date of purchase, pursuant to this Agreement and the applicable Order. Services are designed to be available 24/7 subject to maintenance. Customer will be notified of scheduled maintenance. Twelve Fifteen will, as part of providing a Service, apply any update, bug fix or upgrade to the Service that it makes generally available to its customers of the Service. Services are subject to usage limits, including for example, the quantities specified in an accepted Order. Twelve Fifteen will comply with all Laws applicable to it in connection with its provision of the Services to Customer. Twelve Fifteen reserves the right to modify the offerings and content at any time.
1.2 Customer Obligations. Customer may enable access of the Services for use only by Customer solely for the purposes of Customer in accordance with this Agreement and not for the benefit of any third parties. Customer is responsible for all use of the Services and compliance with this Agreement and the applicable Order(s). Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data that is transmitted or otherwise provided to Twelve Fifteen and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Twelve Fifteen promptly of any such unauthorized access or use; and (c) shall use the Services(s) only in accordance with this Agreement, the Documentation and the applicable Law. Customer shall not: (i) use the Services in violation of applicable Laws and regulations; (ii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights. Customer shall be liable for the acts and omissions of all Persons and Customer Affiliates relating to this Agreement. If Customer installs or enables a third-party application for use with a Twelve Fifteen Service, Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants Twelve Fifteen permission to allow the provider of that third-party application to access Customer Data as required for the interoperation of the third-party application and the Twelve Fifteen Service.
Article 2. Customer Data
2.1 Protection and Security. During the Term of this Agreement, Twelve Fifteen shall establish, implement and maintain commercially reasonable administrative, physical and technical measures that are designed to protect the security and integrity of Customer Data that is provided to Twelve Fifteen by Customer, and that are reasonably appropriate to the risks represented by the processing and nature of the provided Customer Data to be protected, and designed to guard against the accidental or unauthorized access, use, loss or disclosure of Customer Data while it is on Twelve Fifteen’ network and systems. Customer understands that it has an independent duty to comply with any and all Laws applicable to it in connection with its provision of Customer Data to Twelve Fifteen. Customer and Twelve Fifteen agree that Twelve Fifteen’s current security measures represents commercially reasonable administrative, physical and technical measures for security and integrity of Customer Data.
2.2 Unauthorized Disclosure.
A. If either party believes that there has been unauthorized access, use, loss or disclosure of Customer Data while it is on the Twelve Fifteen network and systems, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in investigating, remediating or mitigating any potential damage, including providing reasonable assistance with respect to any legally required notifications concerning the disclosure. Except as set forth in Section 2.2.B., each party shall bear the costs of such investigation, remediation, mitigation and/or notification associated with an unauthorized disclosure.
B. In the event that the unauthorized access, use, loss or disclosure of Customer Data was caused by breach of Twelve Fifteen’s obligations under this Agreement, then Twelve Fifteen shall reimburse Customer for its reasonable actual out-of-pocket costs to investigate and/or remediate such disclosure and provide legally required notifications to the affected users, subject to the cap on liability in Article 9. This Section 2.2.B states Twelve Fifteen’ sole liability for unauthorized access, use, loss or disclosure of Customer Data attributable to Twelve Fifteen’s breach of its obligations under this Agreement.
Article 3. Fees and Payment
3.1 Fees and Payment Terms. The Service Fees shall be set out in each Order. By electing credit card or debit card payment and inputting its billing and credit card information into the Twelve Fifteen system, Customer’s credit or debit card on file, which will only be stored on a third party site (not Twelve Fifteen), will be charged a one-time or monthly Fees, depending on Customers selection of payment option, for the term and payment options selected, provided that Customer remains responsible for Service Fees. Upon failure of payment by credit card or debit card and notification of same by Twelve Fifteen to update Customer’s payment information, Twelve Fifteen will suspend the account discontinue access to the site after thirty (30) days and the remining balance of the Order will be due immediately. If full payment of the Order is not made within another thirty (30) days, the Order will be terminated and access to the Twelve Fifteen Service will be deemed abandoned and permanently terminated. NO REFUNDS WILL BE GIVEN, however, Customer may place another Order. Fees will be billed and paid in USD, unless otherwise agreed in writing by the parties. Customer understands and confirms that the Placement process will not begin until the full amount of the Order, whether a one-time payment or monthly payments are paid in full.
3. Taxes. Excluding taxes based on Twelve Fifteen’s income, Customer is liable for all taxes relating to the Services.
Article 4. Confidentiality
4.1 Confidential Information Defined.
A. “Confidential Information” means all information disclosed by a party (“Discloser”) to the other party (“Recipient”), orally or in writing, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstance of disclosure. Customer’s Confidential Information includes Customer Data; Twelve Fifteen Confidential Information includes the Services, Twelve Fifteen Content and Documentation and proprietary technology and technical information, business processes and technical product information, product plans and designs, issues, and all communication between the Parties regarding the Services.
B. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; (iv) is received from a third party without breach of any obligation owed to the other party; or (v) is Aggregated Data as described further in Section 5.5.
4.2 Confidentiality Obligations. During the course of the parties’ relationship, each party may have access to Confidential Information of the other party. Neither party shall disclose any Confidential Information of the other party, orally or in writing, to any third party without the prior written consent of the other party, except as provided in this Agreement. The parties shall protect each other’s Confidential Information using commercially reasonable administrative, physical and technical safeguards. Neither party shall use the other party’s Confidential Information for any purpose other than lawful performance of this Agreement. Customer agrees to allow Twelve fifteen at it’s sole discretion disclose this information as necessary for the purposes of job placement, immigration or any other reason under this Agreement per Section 4.3.
4.3 Disclosure to Third Parties and as Required by Law. Recipient may provide access to and use of Discloser’s Confidential Information only to those third parties that: (a) provide services to Recipient concerning Recipient’s use of Discloser’s Confidential Information; (b) have a need to use and access the Confidential Information; and (c) have agreed to substantially similar non-disclosure obligations as those contained in this Agreement. Recipient shall be responsible for the use by its third parties of the Discloser’s Confidential Information. To the extent Recipient may be required by Law to disclose Confidential Information, Recipient may make such disclosure, provided that Recipient (i) to the extent permitted by Law, hereby has notified Discloser of such requirement, such as in Section 4.2, prior to disclosure and (ii) makes diligent efforts to avoid and limit disclosure. Notwithstanding Recipient’s conformance with the procedures set forth in the prior sentence, the disclosure required by Law shall not itself cause the information to lose its confidential character unless the information ceases to be Confidential Information as a result of one of the reasons specifically set forth in Section 4.1.B above.
4.4 Injunctive Relief and other Remedies. Each party understands that Confidential Information constitutes valuable assets of Discloser and its disclosure may irreparably harm Discloser. In the event of breach or threatened breach of obligations pertaining to Confidential Information by Recipient, Discloser shall be entitled to seek injunctive relief. In the event of an unauthorized disclosure of Confidential Information that only includes Customer Data, Customer shall have the sole right to pursue the remedies set forth in Sections 2.2 and 9 of this Agreement. Any other potential remedies related to a breach of this section for Confidential Information that does not include Customer Data are subject to all other provisions in this Agreement.
Article 5. Proprietary Rights
5.1 Ownership and Reservation of Rights to Twelve Fifteen Technology. Twelve Fifteen owns all right, title and interest in and to the Services, Documentation, Twelve Fifteen Content, and other Twelve Fifteen Technology, as well as any modifications that are derivative works thereof. Subject to the limited rights expressly granted hereunder, Twelve Fifteen reserves all rights, title and interest in and to the Services, Documentation, and Twelve Fifteen Content, including all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 License Grant. Twelve Fifteen hereby grants Customer a non-exclusive, non-transferable, right to use the Services, Documentation and Twelve Fifteen Content, solely for the purposes of Customer and solely during the Term, subject to the terms and conditions of this Agreement within scope of use defined herein. Twelve Fifteen further grants to Customer:
A. Solely during the Term, the right to use Twelve Fifteen Services or portions thereof in combination with Third Party affiliate (non-Twelve Fifteen) Learning Management System (LMS), with the express obligation that Customer remove and return or destroy all materials upon expiration or termination of the Term; Twelve Fifteen may audit Customer’ compliance with this post-Term obligation once annually for the two years following expiration or termination of this Agreement.
B. Solely during the Term, the right to use the Twelve Fifteen Content and partner (with Twelve Fifteen), third party LMS provided that Twelve Fifteen does not warrant and bears no responsibility for availability of the Twelve Fifteen Content on a third party LMS or the accuracy or effectiveness of and such LMS.
5.3 License Restrictions. Customer shall not (i) except as allowed under Section 5.2.A, modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Twelve Fifteen in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.
5.4 Ownership of Customer Data and Documentation. As between Twelve Fifteen and Customer, Customer owns its Customer Data, but Customer expressly authorizes Twelve Fifteen at it’s sole discretion to use and Customer Data with third parties as necessary as a part of the placement or immigration processes as part of the Services under this Agreement, especially Sections 4.2 and 4.3.
5.5 Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, Twelve Fifteen owns and has the perpetual right to use for its business and or operating purposes the aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Twelve Fifteen from utilizing the Aggregated Data for purposes of operating Twelve Fifteen’s business, provided that Twelve Fifteen’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services. In no event does the Aggregated Data include any Customer Confidential Information, Customer Data or any information that personally identifies a specific individual.
Article 6. Term, Termination, Suspension, and Dispute Resolution
6.1 Term. This Agreement shall have a term commencing as of the Effective Date (when this Agreement is agreed to and first payment is made) and ending upon expiration or termination of all Orders issued hereunder. Each Order shall have a term commencing on its Effective Date and, unless otherwise set forth therein or upon its termination, or the termination of this Agreement, shall expire in accordance with the type of plan selected after its Effective Date. The Basic plan will expire twelve (12) months from the Effective Date. The Standard Plan will expire eighteen (18) months from the Effective date. And the Premium plan will expire thirty (30) months from the effective date.
6.2 Termination for Default. Either party may terminate this Agreement in its entirety or any specific Order if the other party breaches any material term of these General Terms or the applicable Order and does not cure such material breach within Thirty (30) days of receiving a Termination Notice. Customer agrees that in the case of termination due to non-payment of a recurring payment, after Thirty (30) days notice have been given to address the issue and make late payments that the Service will be terminated and any payments on a recurring basis to date will be forfeited as compensation for use of the service to date. NO REFUNDS WILL BE ISSUED UNDER ANY DEFAULT.
6.3 Effect of Expiration or Termination. When this Agreement or any Order expires or is terminated, Customer shall pay all money due to Twelve Fifteen for Services rendered up to the expiration or termination date and any payments that may become due pursuant to this Agreement subsequent to such expiration or termination. Customer also agrees to immediately stop using the Services and accessing the software, any provided third party LMS, and Twelve Fifteen Content upon expiration or termination of the Order(s) and/or Agreement and both parties agree to stop using the Confidential Information of the other party and to return or destroy (at the party’s discretion) all the copies of the other party’s Confidential Information. To the extent the Recipient is required to keep a copy of any of the Discloser’s Confidential Information as required by applicable law, the Recipient shall continue to treat such Discloser’s Confidential Information as Confidential Information in accordance with the terms of this Agreement.
6.4 Dispute Resolution. Prior to instituting formal proceedings, the parties shall attempt to resolve all disputes arising out of or relating to this Agreement informally. To invoke this process a party shall appoint a designated executive and request that the other party do the same. The other party shall make such appointment within five (5) days of receipt of the request. The designated executives shall then have up to thirty (30) days to attempt in good faith to resolve the matter. The informal dispute resolution process shall terminate at the end of the thirty (30) day period unless extended by mutual agreement. Disputes not resolved by informal dispute resolution as provided in this section will be resolved by litigation unless the parties mutually agree to an alternative dispute resolution method such as arbitration.
Nothing in this section shall prevent, or be construed as preventing, a party from (a) instituting formal proceedings to avoid the expiration of any applicable limitations period, or (b) seeking injunctive or other equitable relief in a court of appropriate jurisdiction.
The parties agree that all negotiations pursuant to this section will be confidential and therefore treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
Article 7. Warranties and Risk
7.1 No Warranties or Guarantees; All Services are provided “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TWELVE FIFTEEN MAKES NO WARRANTIES OR GUARANTEE OF ANY KIND UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SERVICES ARE PROVIDED “AS IS”. TWELVE FIFTEEN MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY OR COMPLETENESS OF ANY OF THE SERVICES NOR THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
7.2 Risks associated with use of Service. CUSTOMER HEREBY WARRANTS THAT HE/SHE UNDERSTANDS THE RISKS ASSOCIATED WITH THE USE OF THIS SERVICE UNDER THIS AGREEMENT. ANY FORM OF JOB PLACEMENT, IMMIGRATION, TESTING, LICENSING OR ANY OTHER CRITERIA MAY BE SOLELY AT THE DISCRETION OF A THIRD PARTY. CUSTOMER AGREES THAT TWELVE FIFTEEN IS DESIGNED TO BE USED TO FURTHER THE JOB PLACEMENT AND IMMIGRATION PROCESSES OF THE CUSTOMER, BUT THAT TWELVE FIFTEEN CANNOT CONTROL LAWS, GOVERNMENT POLICY, STATE LICENSING, CREDENTIAL VERIFICATION, TESTING PROCEDURES OR PASSING SCORES AND EMPLOYMENT DECISIONS BY INDIVIDUAL EMPLOYERS. THESE CRITERIA ALONG WITH CUSTOMERS OWN EFFORTS TO PASS EXAMINATIONS, PROVIDE CORRECT INFORMATION AND DOCUMENTATION TO RELEVENT AUTHORITIES, AND SECURE EMPLOYMENT THROUGH PORTRAYING PROFESSIONALISM TO PROSPECTIVE EMPLOYERS ARE ALL CRITICAL TO THE OUTCOME OF THE CUSTOMER’S USE OF THE SERVICE AND ARE ALL NECESSARY COMPONENTS TO SUCCESSFUL USE OF THIS SERVICE. CUSTOMER FURTHER ACKNOWLEDGES THAT ALL ANSWERS TO THE PREQUALIFICATION QUESTIONS ARE ACCURATE AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY INACCURACIES PROVIDED IN THE ANSWERS AGREED TO IN PREQUALIFICATION QUESTIONS, WHICH WOULD OTHERWISE MAKE CUSTOMER INELIGIBLE FOR THIS SERVICE. CUSTOMER HEREBY CONSENTS TO HOLD TWELVE FIFTEEN HARMLESS IN THE EVENT THAT ANY OF THE CITERIA MENTIONED IN THIS SECTION 7.2 LEAD TO A LESS THAN DESIRED OUTCOME AS TWELVE FIFTEEN DOES NOT GUARANTEE ANY OUTCOME, BUT SOLELY PROVIDES A SERVICE TO ASSIST THE CUSTOMER.
7.3 US Immigration Requirements. CUSTOMER UNDERSTANDS THAT THE IMMIGRATION LAWS, RESTRICTIONS AND ORDERS BY THE US GOVERNMENT ARE SUBJECT TO CHANGE WITHOUT NOTICE AND TWELVE FIFTEEN WILL ATTEMPT TO UPDATE THE SERVICE TO COMPLY WITH SUCH CHANGES. CUSTOMER FURTHER UNDERSTANDS THAT HE/SHE MUST BE IMMIGRATION ELIGIBLE AND HAS CONSENTED TO SUCH IN THE PREQUALIFICATION QUESTIONS. IT IS THE RESPONSIBILITY OF THE CUSTOMER TO UNDERSTAND WHAT, IF ANY RESTRICTIONS TO UNITED STATES IMMIGRATION CUSTOMER MAY FACE WHETHER AS AN INDIVIDUAL OR AS A CITIZEN OF ANOTHER SOVEREIGN STATE AND THAT CUSTOMER WILL HOLD TWELVE FIFTEEN HARMLESS FOR ANY ISSUES THAT ARISE FROM ANY UNITED STATES IMMIGRATION POLICY OR REQUIREMENTS UNDER UNITED STATES LAW.
Article 8. Indemnification
8.1 Indemnification by Twelve Fifteen. Twelve Fifteen will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party for the use of this Service in accordance with this Agreement and the applicable Order up to the limits set forth in Section 9.
8.2 Indemnification by Customer. Customer will defend Twelve Fifteen against any claim, demand, suit or proceeding made or brought against Twelve Fifteen by a third party alleging that Customer Data, Customer Content, or Customer’s use of any Service in breach of this Agreement and the applicable Order, infringes or misappropriates such third party’s intellectual property rights (a “ Third Party Intellectual Property Claim Against Twelve Fifteen”), and will indemnify Twelve Fifteen from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against Twelve Fifteen as a result of, or for any amounts paid by Twelve Fifteen under a court-approved settlement of, a Third Party Intellectual Property Claim Against Twelve Fifteen, provided Twelve Fifteen (a) promptly gives Customer written notice of the Third Party Intellectual Property Claim Against Twelve Fifteen, (b) gives Customer sole control of the defense and settlement of the Third Party Intellectual Property Claim Against Twelve Fifteen (except that Customer may not settle any Third Party Intellectual Property Claim Against Twelve Fifteen unless it unconditionally releases Twelve Fifteen of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
8.3 Entire Indemnification. This Article 8 sets forth each party’s liability and the other party’s sole and exclusive remedy for indemnification related to a Third Party Intellectual Property Claim Against Customer or a Third Party Intellectual Property Claim Against Twelve Fifteen.
Article 9. Limitation of Liability
9.1 Direct Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, A PARTY’S AGGREGATE MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TOTAL AMOUNT PAID PRIOR TO THE DATE SUCH CAUSE OF ACTION FIRST AROSE (“FEE EXPOSURE”), EXCEPT THAT THE DOLLAR LIMIT IN THIS SECTION 9.1 WILL NOT APPLY TO DAMAGES ARISING FROM: (I) A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN ARTICLE 8, WHICH SHALL BE CAPPED AT ONE TIME THE FEE EXPOSURE; OR (II) EXPRESS OBLIGATIONS UNDER SECTION 2.2 RELATED TO THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA, WHICH SHALL BE CAPPED AT ONE TIME THE FEE EXPOSURE. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER ARTICLE 3.
9.2 Exclusion of Consequential and Related Damages. EXCEPT TO THE EXTENT THAT THE DAMAGES OR COSTS SET FORTH IMMEDIATELY ABOVE IN SECTIONS 9.1(I) AND 9.1(II) ARE DEEMED CONSEQUENTIAL OR INCIDENTAL DAMAGES, NEITHER PARTY (INCLUDING IN THE CASE OF TWELVE FIFTEEN, ANY OF ITS SUPPLIERS OR THIRD PARTY LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, LOST PROFITS OR REVENUES, COVER OR PUNITIVE DAMAGES, HOWEVER ARISING AND EVEN IF THE PARTY AGAINST WHOM THE CLAIM IS MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Essential Elements of Agreement. THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES APPLY REGARDLESS OF THE FORM IN WHICH AN ACTION (LEGAL, EQUITABLE OR OTHERWISE) IS BROUGHT, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE LIMITATIONS OF LIABILITIES, DISCLAIMERS OF WARRANTIES, EXCLUSIVITY OF REMEDIES, AND OTHER LIMITATIONS SET FORTH HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES (WITHOUT WHICH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WOULD NOT OCCUR) AND WILL APPLY EVEN IF A REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
Article 10. Miscellaneous
10.1 Notices. All notices required or permitted by this Agreement shall be in writing and delivered by email, personal delivery, express courier, or certified or registered mail, and shall be effective upon delivery. All notices will be electronically emailed or to such other address as either party may indicate by at least ten (10) days prior written notice to the other party.
All written notices to Twelve Fifteen should be sent to:
Twelve Fifteen LLC
2020 N. California Ave. #221
Chicago, IL 60647
10.2 Assignment. Subject to Twelve Fifteen’s right to utilize Suppliers to supply all or part of the Services, neither party shall assign or transfer any of its rights or delegate any of its duties under this Agreement.
10.3 Survivability. The terms of this Agreement, which by their nature one would reasonably intend to survive this Agreement shall survive it, including terms addressing fees (Article 3), confidentiality (Article 4), ownership (Article 5), termination (Article 6), representations and warranties (Article 7), indemnity (Article 8), limitation of liability (Article 9), and the applicable miscellaneous sections in Article 10.
10.4 Law and Jurisdiction. The laws of the State of Illinois, U.S.A shall govern this Agreement, excluding its conflict of laws provisions. The federal and state courts of Illinois shall have exclusive jurisdiction with respect to any action arising out of, relating to or in any way connected with this Agreement, its negotiation or termination, or the Services.
10.5 Article and Section Headings. The Article and Section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.
10.6 Force Majeure. Except for Customer’s obligation to pay Twelve Fifteen or to assume obligations for taxes, neither party shall be liable for any failure to perform due to causes beyond its reasonable control, such as war, terrorism, civil commotion, Internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
10.7 Not for Use in High Risk Activities. Customer acknowledges that the Services are not designed or intended for use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
10.8 Severability. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.
10.9 Waivers. The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future.
10.10 Publicity. Twelve Fifteen may request a testimonial from Customer, with Customer’s written permission upon completion of the program to use on the Twelve Fifteen website or for any for marketing purposes.
10.11 Modifications, Additional Terms, Entire Agreement, Amendment. No order or other document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. All proposed variations or additions, whether submitted by Twelve Fifteen or Customer, are objected to and deemed immaterial unless otherwise agreed to in a writing signed by both parties. This Agreement constitutes the entire agreement and understanding between the parties concerning Customer’s access to the Services and may not be modified by custom or usage. This Agreement replaces and supersedes all prior oral or written understandings, communications and representations between the parties with respect to the Services. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.
Article 11. Definitions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of fifty-one percent (51%) of the voting interests of the subject entity.
“Twelve Fifteen Technology” means Twelve Fifteen proprietary technology, including the Services, software, hardware designs, copyrights, trademarks, patents, trade secrets, software tools, algorithms, user interface designs, architectures, products, documentations, the designs and schema for any network or system connectivity and related intellectual property worldwide and whether in printed, written, electronically reproduced or any other form and whether owned by Twelve Fifteen or any Supplier or licensed to Twelve Fifteen or any Supplier and all enhancements, derivatives, improvements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement.
“Confidential Information” has the definition provided in Section 4.1.
“Content” means content that is created or viewed within and any Learning Management System provided by a third party (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship).
“Twelve Fifteen Content” means Content and Learning Resources created by or for Twelve Fifteen, or otherwise provided by Twelve Fifteen to Customer. Unless excepted, “Twelve Fifteen Content” is included in each reference to Services in this Agreement.
“Customer Data” means the electronic data or information submitted by Customer including personal and family information and documents including passports, birth certificates, marriage certificates, academic transcripts, diplomas, CVs, credential verification, state licensing applications, testing and results documents, and any other document that may be necessary under this Service.
“Discloser” has the definition provided in Section 4.1.A.
"Documentation" means the published user manuals, whether in print or electronic form, or on-line help functions for the Service, as updated from time to time.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
“Learning Management System” or “LMS” means a third party learning management system through which a Customer can register and participate in Content, and Twelve Fifteen can administer and view reports on the learner’s activities; all LMS are solely provided to assist Customers pass required examinations.
"Fee" means the fee Twelve Fifteen charges to Customer for the Services that is detailed in each Order.
"Recipient" has the definition provided in Section 4.1.A.
“Order” means the purchase of a Twelve Fifteen Service with a program and payment option selected
"Services" or means the Online Services and Twelve Fifteen Content provided by Twelve Fifteen to Customer under an Order.
"Supplier" means any person or entity contracted by Twelve Fifteen that provides services, materials, products, or supplies in connection with the Services. Twelve Fifteen may change Suppliers at its sole discretion. Twelve Fifteen is responsible for its Suppliers' compliance with this Agreement.
“Term” means the duration of Customer’s subscription to the Service as set forth in the Order.
"Termination Notice" means prior written notice (consistent with Section 10.1) by one party to the other of the intent to terminate the Services under any or all Orders.
Last modified July, 17, 2018