Lessonly 2020-2022

Lessonly Subscription Services Agreement

Effective Date: December 15, 2020

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE OR BY SIGNING BELOW YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR AN ENTITY FOR WHOSE BENEFIT THIS SERVICE IS BEING USED, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.

This Agreement is between Lessonly, Inc., a Delaware corporation (“Lessonly”), and the customer agreeing to these terms (“Customer”).

WEB BASED SERVICE
This agreement provides Customer access to and usage of an Internet based training software service as specified on an order (“Service”).
USE OF SERVICE
1. Customer Owned Content. All videos, audios, text, presentations, documents, quizzes, practice scenarios and other content uploaded by Customer or provided to Lessonly for upload, transformation and/or curation on Customer’s behalf (“Customer Content”) remains the property of Customer, as between Lessonly and Customer, and Customer represents and warrants that it owns or is authorized to use, reproduce, distribute, publicly display and/or perform and prepare derivative works of the Customer Content (and to grant such rights to Lessonly on Customer’s behalf). Customer grants Lessonly the right to use the Customer Content solely for purposes of performing the Services under this Agreement. During the Term of this Agreement, Customer may export its Customer Content only as allowed by functionality within the Service. More information regarding export functionality is located at: http://www.lessonly.com/contract-faqs.
2. Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this Agreement, which access must be for the sole benefit of Customer. Customer is responsible for compliance with this Agreement by its contractors.
3. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Content and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account and notify Lessonly promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s technical documentation located at lessonly.com and applicable law.
4. Lessonly Support. Lessonly will provide customer support for the Service under the terms of Lessonly’s Customer Support Policy (“Support”) which is located at www.lessonly.com/support.
5. Trademark License. Customer grants Lessonly a non-exclusive, terminable license to use the Customer trade names, trademarks and service marks during the Term of this Agreement only for the purpose of Lessonly performing under this Agreement except as provided on the Order Form. For clarity, this license permits Lessonly’s use of Customer’s logo within the application for whitelabeling.
6. Application Program Interface. Lessonly provides access to its application-program interface (“API”) as part of the Service for no additional fee. Subject to the other terms of this agreement, Lessonly grants Customer a non-exclusive, non-transferable, terminable license to interact with the API only with the Service as allowed by the API.
  - Customer may not use the API in a manner, as reasonably determined by Lessonly, that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with the API Policy located at https://docs.lessonly.com/#introduction or with any part of the API. If any of these occur, Lessonly can suspend or terminate Customer’s access to the API ona temporary or permanent basis.
  - Lessonly may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but Lessonly will use commercially reasonable efforts to support the previous version of the API for at least six months. Lessonly may add new endpoints or fields in API results without prior notice to Customer.
  - The API is provided on an AS IS basis. Lessonly has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
7. Beta Services. “Beta Services” means any pre-production or test service or functionality. Beta Services are intended for evaluation purposes only and not for production use, are not supported, may contain errors, design flaws or bugs. Any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation or Lessonly discontinues/terminates the Beta Services. BETA SERVICES ARE PROVIDED “AS-IS.”
8. Integrations. Lessonly may provide integration features that enable Customer to interact with third-party service providers (“Integration”). An Integration may be unavailable or may not work properly if a service provider’s interface is unavailable or if a service provider modifies its interface or service in a way that materially adversely impacts the Integration. Lessonly will use commercially reasonable efforts to modify its Integrations to maintain compatibility, but Lessonly may discontinue any Integration without liability if there is a change in the Integration or service that creates an unreasonable cost or operational burden to Lessonly. Customer’s obligations for the payment of fees are not conditioned on the continued availability of any Integration provided at no additional charge. If a fee is charged specifically for an Integration, and that Integration becomes permanently unavailable, Lessonly shall grant a pro-rata refund for such Integration to the Customer following the date of such permanent unavailability. A current list of such Integrations can be found at lessonly.com/integrations.
SERVICE LEVEL AGREEMENT & WARRANTY
1. Warranty. Lessonly warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, force majeure, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during the Term; and (iii) that the Support may change but will not materially degrade during the Term.
  
  Availability Warranty = Credit
  - 99.5 – 95% = 10% of monthly fee.
  - 94.99 – 90% = 25% of monthly fee.
  - Less than 90% = 50% of monthly fee.
  - Maximum amount of the credit is 50% of the fee for such month.
2. Limited Remedy. Customer’s exclusive remedy and Lessonly’s sole obligation for its failure to meet the warranty in Section 3.a.(i) above will be for Lessonly to provide a credit for the applicable month, as provided in the chart above (if this Agreement is not renewed, then a refund), for the month; provided that Customer notifies Lessonly of such breach within 30 days of the end of that month.
3. DISCLAIMER. LESSONLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE LESSONLY TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, LESSONLY DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
PAYMENT
Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. All fees are stated and must be paid in U.S. dollars. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This Agreement contemplates one or more Order Forms for the Service, which Order Forms are governed by the terms of this Agreement.
MUTUAL CONFIDENTIALITY
1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Discloser’) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Lessonly’s Confidential Information includes without limitation the Service, its user interface design and layout, and pricing information.
2. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.
3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
4. Data Security
  - Security Measures. To protect Customer’s Content, Lessonly will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Confidential Information; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures (i.e., vulnerability scans and penetration testing); (iii) designate an employee or employees to coordinate implementation and maintenance of its security measures; and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of such Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks.
  - Notice of Data Breach. If Lessonly knows that Customer Content has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this Agreement, Lessonly will alert Customer of any data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. Lessonly will give highest priority to immediately eliminating the data breach and devote such resources as may be required to accomplish that goal. Lessonly will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach.
LESSONLY PROPERTY
1. Reservation of Rights. The software, workflow processes, user interface, designs, and other technologies provided by Lessonly as part of the Service are the proprietary property of Lessonly and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Lessonly. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Lessonly reserves all rights unless expressly granted in this agreement.
2. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
3. Anonymized Data. During and after the Term of this Agreement, Lessonly may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
4. Lessonly University. As part of providing the Service, Lessonly provides Customer with access to limited pre-built content known as “Lessonly University.” Lessonly retains all right, title and interest in and to the contents of Lessonly University. During the Term, Customer may customize the contents of any lesson it has access to in Lessonly University, and Customer shall retain all rights in its customizations. During the Term and following termination of this Agreement, Lessonly grants Customer a non-exclusive, non-transferable, royalty-free license to use Customer’s customized Lessonly University content solely for Customer’s internal training purposes and not for any external or with any third party for commercialization purposes.
TERM AND TERMINATION
1. Term. This Agreement continues until all Order Forms have expired or are terminated for material breach under Section 7(b).
2. Mutual Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
3. Return of Customer Content.
  - Within 30-days after termination, upon request Lessonly will make the Service available for Customer to export Customer Content as provided in Section 2(a).
  - After such 30-day period, Lessonly has no obligation to maintain the Customer Content and may destroy it.
4. Return Lessonly Property Upon Termination. Upon termination of this Agreement for any reason, Customer must pay Lessonly for any unpaid amounts, and destroy or return all property of Lessonly. Upon Lessonly’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
5. Suspension for Violations of Law. Lessonly may suspend the Service or remove the applicable Customer Content, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law until Customer’s use of the Service and/or Customer’s Content is in compliance with all laws. Lessonly will attempt to contact Customer in advance.
6. Suspension for Non-Payment. Lessonly may suspend the Service if Customer is more than 30 days late on any payment due pursuant to an Order Form until Customer’s account is current.
LIABILITY LIMIT
1. Exclusion for Indirect Damages. Except for Lessonly’s indemnity obligations, Lessonly is not liable for any indirect, special, incidental or consequential damages arising out of or related to this Agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss or if the damage or loss is foreseeable.
2. Total Limit on Liability. Except for Lessonly’s indemnity obligations, Lessonly’s total liability arising out of or related to this Agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12 month period prior to the event that gave rise to the liability.
INDEMNITY
1. Defense of Third Party Claims. Lessonly will defend or settle any third-party claim against Customer to the extent that such claim alleges that Lessonly technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Lessonly of the claim in writing, cooperates with Lessonly in the defense, and allows Lessonly to solely control the defense or settlement of the claim. Costs. Lessonly will pay infringement claim defense costs it incurs in defending Customer, and Lessonly negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Lessonly may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Lessonly determines that none of these are reasonably available, then Lessonly may terminate the Service and refund any prepaid and unused fees. Exclusions. Lessonly has no obligation for any claim arising from: Lessonly’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Content; or technology or aspects not provided by Lessonly. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND LESSONLY’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
2. By Customer. If a third-party claims against Lessonly that any part of the Customer Content infringes or violates that party’s patent, copyright or other right, Customer will defend Lessonly against that claim at Customer’s expense and pay all costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Customer, provided that Lessonly: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in the defense and any related settlement.
GOVERNING LAW AND FORUM.
This Agreement is governed by the laws of the State of Indiana (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts of Indiana, and Customer submits to this personal jurisdiction and venue. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
OTHER TERMS
1. Insurance. During the Term and for 1 year after the Term, Lessonly will maintain the following policies of insurance.
  - Comprehensive General Liability (CGL) Insurance: This insurance will cover contractual liability, personal or bodily injury, products liability, premises/operations, completed operations and broad form property damage, with a combined single limit of not less than $2,000,000 per occurrence.
  - Workers Compensation and Employer’s Liability: $1,000,000 per accident and Employers Liability with limits as required by law. These policies will contain waivers of the insurer’s subrogation rights against Customer where permitted by law.
  - Umbrella Coverage: $5,000,000 per occurrence.
  - Technology Errors and Omissions Insurance: $3,000,000 per claim, with technology services liability, electronic privacy liability, electronic media coverage, network security coverage, and cyber extortion loss coverage.
  - Other: The CGL policy will: be endorsed with a statement that the coverage may not be canceled, altered or permitted to lapse or expire without 30 days’ prior written notice to Customer; and provide that the insurer waives any right of subrogation against Customer.
2. Entire Agreement and Changes. This Agreement and the Order Form constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding. No modification of this Agreement is effective unless signed by both parties. No waiver is effective unless the party waiving the right signs a waiver in writing.
3. No Assignment. Neither party may assign or transfer this Agreement or an Order Form to a third party, except that this Agreement with all Orders Forms may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets of a party.
4. Independent Contractors. The parties are independent contractors with respect to each other.
5. Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
6. Money Damages Insufficient. Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
7. No Additional Terms. Lessonly rejects additional or conflicting terms of any Customer form or purchasing document.
8. Order of Precedence. If there is an inconsistency between this Agreement and an Order Form, the Order Form prevails.
9. Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
10. Feedback. If Customer provides feedback or suggestions about the Service, then Lessonly (and those it allows to use its technology) may use such information without obligation to Customer.

Previous SSAs:

Policy — 9-20-2019 to 12-14-2020