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LMS Agreement

BY EXECUTING A SERVICE ORDER FOR A SUBSCRIPTION TO SITEIMPROVE’S LMS ‘FRONTIER’ OR ACCESSING THE LMS, CUSTOMER AGREES TO THE TERMS OF THIS LMS AGREEMENT (“LMS AGREEMENT”). IF THE INDIVIDUAL ACCEPTING THIS LMS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY.

1. Scope

This LMS Agreement is limited to Customer’s access to the LMS, as outlined in the Service Order or Success Plan. Any use of Siteimprove’s Software Services by Customer will be governed by the Siteimprove Master Subscription Agreement or, where applicable, other separate subscription agreement entered into by the parties explicitly governing such rights and obligations (the “Master Subscription Agreement”). In the event of conflict between the terms of this LMS Agreement, the Master Subscription Agreement, and the applicable Service Order, the following order of precedence shall apply in relation only to provisioning of the LMS: 1) Service Order; 2) this LMS Agreement; 3) the Master Subscription Agreement. In this LMS Agreement, terms with initial capital letters shall have the meanings ascribed to such terms in this LMS Agreement and elsewhere in the Master Subscription Agreement.

Unless otherwise provided in a statement of work, the term for the LMS subscription will continue for the term specified in the applicable Service Order.

2. Use of the LMS

a. Access. Siteimprove shall, during the term for access to the LMS outlined in the applicable Service Order or Success Plan, make the LMS available to the Customer pursuant to the following terms: a) this LMS Agreement; b) the Master Subscription Agreement; c) the applicable Service Order(s) or Success Plan. Customer’s subscription to the LMS shall be subject to the limitations set out in the Service Order and Success Plan, if applicable. For clarity, one user shall be considered one seat (“Seat”). The LMS can be accessed through Customer’s dashboard at: https://my.siteimprove.com (‘Dashboard’). Customer will have access to content as specified in the applicable Service Order or Success Plan.

b. Seat Assignment. Customer shall work with Siteimprove to administer the Seat assignments. Customer may reassign up to 20% of its Seats per year during the Subscription Term. During the Subscription Term, Siteimprove may audit Customer’s assignment of Seats to ensure compliance with this Section.

c. Usage Restrictions. The LMS can be accessed only by Customer and its authorized users. Customer shall not share user credentials and/or log-in details with any third party or provide unauthorized access to the LMS. Customer may not share user login credentials for the purpose of staying within the limitations set out in the Service Order or Success Plan. Customer shall not: (a) rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the LMS or any of the contents, material or information on the LMS available to any third party; (b) attempt to copy, duplicate, modify, make derivative works of, disassemble, reverse compile or reverse engineer any part the LMS; (c) record or attempt to record, screengrab or photograph any live online or on demand content, material or information; (d)access all or any part of the LMS in order to build a product, software or service which competes with the LMS; (e) use the LMS to provide a service bureau or to provide services to third parties; (f) remove or alter any trademark, logo, copyright or other proprietary notices, symbols, or labels in the LMS; (g) use the LMS if they are in direct competition with Siteimprove; (h) use the LMS for any illegal or harmful purpose. Siteimprove reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the LMS if the Customer breaches the provisions of this Section 2.

3. Ownership of Intellectual Property within the LMS

a. Siteimprove Material. Siteimprove owns and shall remain the sole owner of all intellectual property vested in the LMS and its components including documentation, learning materials, certification requirements (“Siteimprove Materials”) created prior to, during, and after performance by the parties of this LMS Agreement. This ownership right includes any inventions, patents, utility model rights, copyrights, design rights, mask works, trademark rights, or knowhow, whether registered or not. Siteimprove shall have the right, at its sole discretion, to change, update, replace and/or remove any Siteimprove Materials at any time during the term of the LMS Agreement.

b. Customer Feedback. By accessing the LMS and posting, provisioning, or sending communications, ideas, comments, questions, materials, or other information to the Siteimprove Community Forum (“Customer Feedback”), Customer grants Siteimprove a nonexclusive, worldwide, royalty-free, irrevocable, transferable and fully sublicensable right to use, reproduce, modify, adapt, publish, publicly perform, translate, create derivative works from, distribute, and publicly display such Customer Feedback throughout the world in any media. Customer agrees to allow Siteimprove to use any videos, photos, and any other Customer Feedback obtained during live and online learning for its promotional and educational materials. Customer grants Siteimprove and its sublicensees the right to use the name that Customer submits in connection with such Customer Feedback. Customer acknowledges and agrees that it is not entitled to any compensation or reimbursement of any kind from Siteimprove in connection with Siteimprove’s use of Customer Feedback.

c. Posting Customer Feedback. Where the LMS permits, Customer may post Customer Feedback provided that the Customer Feedback is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties, and provided that such use and Customer Feedback complies with this LMS Agreement and the Master Subscription Agreement. Siteimprove reserves the right (but not the obligation) to remove or edit such Customer Feedback, but does not regularly review posted Customer Feedback. Siteimprove takes no responsibility and assumes no liability for any Customer Feedback posted by Customer or any third party.

d. Customer Material. For any material provided to Siteimprove to be imported into the LMS (“Customer Material”), Customer must obtain and maintain all necessary licenses, consents, and permissions necessary for Siteimprove to perform its obligations and exercise rights under this LMS Agreement.

4. Representations and Warranties.

a. By Customer. Customer represents and warrants that it owns or otherwise controls all of the rights to the Customer Feedback that it posts; that the Customer Feedback is accurate; that use of the Customer Feedback and Customer Material it supplies does not breach this LMS Agreement or the Master Subscription Agreement and will not cause injury, loss or damage to any person or entity. Customer will defend Siteimprove and its Affiliates from and against all third-party claims, lawsuits, and demands arising out of an allegation resulting from Customer’s Feedback or Customer Material which is supplied, uploaded or transmitted by Customer and its users. Customer will have full control and authority over the defense, except that: (i) any settlement requiring Siteimprove to admit liability or to pay any money will require Siteimprove’s prior written consent, such consent not to be unreasonably withheld or delayed, and (ii) Siteimprove may join in the defense with its own counsel at its own expense.

b. Disclaimer. To the extent permitted by applicable law and except as expressly provided herein, neither party makes any other representation, warranty, condition or promise of any kind, whether express, implied, statutory, customary, a course of dealing or trade practice or otherwise with respect to the performance of the LMS or the accuracy of any of the content and or services included in the LMS or with respect to the subject matter of the LMS Agreement as a whole, whether made in writing or orally. In particular, to the maximum extent permitted under applicable law, Siteimprove does not warrant that the LMS or any of the content, materials and other services included in the LMS will meet the user’s requirements, will ensure Customer’s compliance with any laws or regulations, will be accurate and/or free from errors and operate uninterrupted or error free.

5. Termination.

a. Material breach. Material breach as regulated under the Master Subscription Agreement shall also include any violation of Section 2 and 3 of this LMS Agreement.