Master Services Agreement
This Agreement was last updated on July 17, 2023.
The access and use of one or more Services (as defined in Section 1 below) acquired from LifeMentor LLC., a Delaware corporation, and/or its Affiliate(s) (collectively, "LifeMentor") are governed by this Master Services Agreement (this "Agreement"). Customer certifies that it has read, comprehends, and has the authority to enter into this agreement by accepting it or by using the services.
Definitions. The following terms have the meanings given below when used in this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement.
"Customer" refers to the individual or entity signing this Agreement and/or an Order Form with LifeMentor.
"Fees" refers to the sums that the customer must pay to LifeMentor in order to access the Services.
“Order Form” means the ordering document mutually executed by LifeMentor and Customer specifying: (i) the Service(s) purchased, (ii) the number of licenses purchased, (iii) Fees payable by Customer to LifeMentor for provision of the Services, (iv) the subscription period of the Services to be provided by LifeMentor to Customer, (v) billing and payment information, and (vi) any other applicable quantity specifications regarding Customer’s purchase of the Services.
“Personal Data” means any data that Customer submits into the Services relating to an identified or identifiable natural person protected under data protection laws.
“Services” means a platform that allows Customer to access online courses (“Courses”) and any related services offered by LifeMentor that may be purchased by Customer and is set forth in the Order Form signed between parties.
“Subscription Period” means the term agreed between the Parties as detailed in the Order Form.
“LifeMentor” means LifeMentor LLC, or one of its Affiliates.
“Users” means the employees and contractors that Customer authorizes to access and use the Services.
Provision of the Services. In accordance with the terms of this Agreement and as outlined in an Order Form, LifeMentor agrees to provide the Services to Customer and its Users. The Customer shall be and remain liable for the acts and omissions of any of its Affiliates. If an Affiliate of Customer wishes to access or use the Services, such Affiliate shall first request Affiliate status and shall then enter into its own separate Order Form governed by this Agreement. For purposes of such Order Form, the Affiliate shall be deemed the "Customer," responsible for its performance and all obligations to LifeMentor thereunder.
Terms of Use.
Customer shall not, and shall not allow its Users to, (i) use the Services in any manner that is unlawful or that violates the rights of others; (ii) copy, distribute, resell, create derivative works from, hack, modify, or interfere with, including by means of the introduction of any computer code, file, or program that may harm the functionality of the Services, any of the Courses, or any third-party system made accessible through the Services; (iii) input any information into any computer system that (iv) scrape, spider, or utilize other automated means of any kind to access the Services, including, but not limited to, accessing API endpoints for which Customer or its Users have not been provided authorization by LifeMentor; (v) use the Services to build a competitive product to the Services; (vi) share login access to the Services among multiple individuals, transfer a User license (except in connection with a termination of employment), or otherwise permit any person other than the Users to use the Services; (vii) use the Services for any purpose other than as a platform to supplement Users' learning and training; (viii) instruct a third party to access LifeMentor's APIs in violation of the API License Agreement; (viiii) use the Services for any purpose other than as a platform to supplement Users' learning and training; or (ix) allow any person who is legally unable to give consent for the use of online services or the collection and processing of their personal data to use the Services (for example,
Customer represents and warrants that neither it nor its Users are (i) located in or residents of any country that is subject to applicable U.S. trade sanctions or embargoes, or (ii) individuals or entities that are listed on any Specially Designated National or Denied-Party List maintained by the U.S. government. Customer must ensure that no Users access or use the Services while in a country that the United States has embargoed goods from or while breaking any export laws or regulations.
Violations of Restrictions. LifeMentor will notify Customer of any violations of the limitations outlined in Section 3 above (collectively, the "Terms of Use") if it determines that Customer or one of its Users has committed such a violation and such a violation is remediable. LifeMentor may terminate or suspend Customer's or the relevant Users' access to the Services if Customer fails to remedy such violation within ten (10) days. Separately, LifeMentor reserves the right to alter or delete offensive content that has been pointed out to us or that has been reported to us.
Fees. The Fees must be paid by the Customer as specified in one or more Order Forms. All fees are payable in US dollars, unless otherwise specified in an Order Form. After the initial subscription period (as specified in an Order Form), any subsequent incremental add-on or renewal orders shall be subject to the standard subscription price in force at the time of purchase. If the customer is late with their payments, LifeMentor reserves the right to charge either 1.5% interest per month or the maximum interest allowed by law, and the customer will be responsible for any fees associated with third parties' collection efforts.
Taxes. The Fees are stated exclusive of all value-added, use, and withholding taxes as well as all other applicable federal, state, local, and foreign taxes, levies, and assessments. Except for taxes based on LifeMentor's income, gross receipts, business and occupation tax, and employment-related taxes, Customer agrees to bear and be liable for the payment of all such taxes, levies, and assessments imposed on Customer arising out of this Agreement. If tax withholding is necessary, Customer will pay the necessary sum to the appropriate government agency and provide LifeMentor with a withholding tax certificate while remitting the remaining amount to LifeMentor.
Confidentiality.
Each party acknowledges that any code, inventions, know-how, or business, technical, or financial information disclosed by the disclosing party (the "Disclosing Party") to the receiving party (the "Receiving Party") is confidential information of the disclosing party (the "Confidential Information"), provided that it is either identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential given the nature of the information. d. However, confidential information will not include any information that is (i) already in the receiving party's possession at the time of disclosure by the disclosing party, (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party as a result of receiving party's inaction or (iii) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party. If required by law, the receiving party may divulge the disclosing party's confidential information as long as it makes a reasonable effort to keep it private and, if allowed by law, gives the disclosing party advance notice so that the disclosing party may seek protective or other court orders.
The Receiving Party agrees (i) not to disclose any Confidential Information to third parties, and (ii) not to use Confidential Information for any purpose other than as necessary to exercise its rights or perform its obligations under this agreement, unless expressly authorized herein or as necessary to do so.
Personal data processing. Customer agrees that LifeMentor may process Personal Data as necessary for: (i) storage and processing in accordance with the Agreement and applicable Order Form(s); (ii) processing initiated by Users in their use of the Services; and (iii) processing to comply with other documented reasonable instructions provided by User (e.g. via email or support tickets) where such instructions are consistent with the terms of the Agreement. To the extent that Customer is subject to data privacy law, then Customer agrees to request from LifeMentor a data protection agreement prior to providing any Personal Data to LifeMentor. Customer will have sole responsibility for the legality of Personal Data and the means by which Customer acquired Personal Data, including providing legally adequate notices to and obtaining any necessary consent from its employees, agents, or third parties to whom it extends the benefits of the Services.
Term and Termination.
The Agreement will go into effect on the Effective Date and last until all Order Forms are fulfilled or terminated. The Subscription Period will be the term of an Order Form, unless the Order Form specifies otherwise. The Subscription Period will automatically renew unless terminated by either party with at least 30 days' written notice prior to the end of the Subscription Period.
Termination for Material Breach. If the other party materially violates this Agreement, either party may terminate this Agreement and any applicable Order Form(s) by giving the other party 30 days' written notice, unless the violation is remedied during that time. If Customer terminates this Agreement or any Order Form due to a material breach by LifeMentor, Customer will be entitled to a prorated refund for Services not provided after the termination date. The parties agree that regardless of the reason for termination, the provisions that are by their very nature intended to survive the termination of this Agreement shall do so.
LifeMentor reserves the right to immediately terminate or suspend Customer's or the relevant Users' access to the Services if required to stop fraud, protect against it, or handle impending potential harm or damages, regardless of any cure periods specified in this Agreement.
Trial Subscriptions. For up to 14 days, or for a longer period as agreed upon by the parties ("Trial Period"), services may be made available to customers on a trial basis (a "Trial Subscription"). Trial Subscriptions are subject to the terms and conditions of this Agreement, with the following exceptions: (i) Trial Subscriptions may only be used to help the customer decide whether to purchase a subscription to the services; (ii) Trial Subscriptions are provided by LifeMentor on an AS IS and AS AVAILABLE basis without warranties of any kind; and (iii) LifeMentor's aggregate liability for all causes of action, claims, and damages arising out of any Trial is limited to the This Agreement ends as it relates to the Trial Subscription after Customer signs an Order Form and pays the applicable Fees at the conclusion of the Trial Period. This Agreement governs a customer's continued use of the Services following a Trial Period.If the customer gives LifeMentor any feedback, the customer acknowledges that LifeMentor owns the feedback and is free to use it however it sees fit without restriction, attribution, or payment of any kind. All such feedback shall be deemed LifeMentor’s Confidential Information.
WARRANTY DISCLAIMER. Except as otherwise agreed by the parties, LifeMentor provides the services "AS IS" and disclaims all representations, conditions, and warranties of any kind, expressed or implied, with respect to the services, the courses, and any third-party systems or platforms accessible through the services, including, but not limited to, any warranties with respect to merchantability, accuracy, fitness for a particular purpose, non-infringement, or availability.
Liability Limitation.
NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR: (i) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (ii) IN THE AGGREGATE, ANY AMOUNTS IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER TO LIFEMENTOR IN THE 12 MONTHS PRIOR TO THE DATE THE RELEVANT CLAIM AROSE.
Despite the above liability exclusion, (i) any indemnified liability and liability resulting from a breach of the Terms of Use will not be limited, and (ii) each party's liability resulting from a breach of its confidentiality obligations under this agreement will be limited to three times the Fees paid or payable by Customer to LifeMentor in the 12 months preceding the date the relevant claim arose.
Indemnification.
LifeMentor's Indemnification Obligations. LifeMentor commits to defending Customer against any third-party claim resulting from a claim that the Services violate the intellectual property rights of a third party (a "Claim Against Customer"); furthermore, LifeMentor agrees to hold Customer harmless from any proven damages, reasonable attorney fees, and related reasonable costs and expenses (collectively, "Losses") incurred by Customer as a result of a Claim Against Customer. In the event that the Services are the subject of, or LifeMentor believes that the Services will be the subject of, an intellectual property claim by a third party, LifeMentor may choose to: (i) modify the Services so that they are no longer allegedly infringing, (ii) acquire a license for Customer's continued use of the Services, or (iii) terminate this Agreement or any applicable Order Forms and give Customer a prorated refund for Services not rendered as agreed. This section outlines LifeMentor's exclusive responsibility to the customer for claims that any aspect of the Services violates a third party's intellectual property rights. In the event that the Customer uses the Services (i) outside the parameters of the licenses granted by the Agreement or (ii) in a manner or for a purpose other than that for which it was supplied, LifeMentor shall have no liability for any claim relating to any Services.
Customer's Indemnification Obligations. In the event that LifeMentor is sued by a third party due to a violation of the Terms of Use by Customer or its Users, the Customer agrees to defend LifeMentor and hold LifeMentor harmless from any losses suffered by LifeMentor as a result of the claim..
Requirements for Indemnification. The following requirements must be met by the party seeking indemnification in order for the indemnification obligations set forth in this agreement to be applicable: (i) prompt tender of the claim for indemnification; (ii) giving the indemnifying party sole control over the defense or settlement of the underlying claim; and (iii) reasonable assistance with any defense or settlement of the underlying claim at the request and expense of the indemnifying party. Despite the aforementioned, a party may not consent to the entry of a judgment or enter into a settlement that limits the other party's rights or imposes liability on them without first obtaining their express consent, which cannot be unreasonably withheld or delayed.
Anti-Corruption. In connection with this Agreement, neither party has accepted nor been offered any illegal or improper bribe, kickback, payment, gift, or other thing of value from an employee or agent of the other party. The aforementioned restriction is not violated by reasonable gifts and entertainment given during regular business operations.
Publicity. Customer gives LifeMentor permission to reference Customer's company name and logo in marketing or promotional materials, including on LifeMentor's website.
Force Majeure. A condition that is beyond a party's reasonable control, such as a natural disaster, civil unrest, terrorist act, war, labor conditions, interruption or failure by a third-party hosting provider, Internet service provider, utility provider, governmental actions, or denial of service attacks, will not hold either party responsible for any delay in the performance of its obligations under this agreement.
Severability. If a court of competent jurisdiction finds that any provision of this Agreement is illegal, that provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in force.
Governing Law Venue, and Attorney’s Fees. Each party consents to the personal jurisdiction and venue of the state or federal courts located inDelaware, and agrees that this Agreement and any disputes arising under it will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any party that prevails in a dispute between the parties regarding the terms of this Agreement will be entitled to reimbursement from the losing party for all related costs, including reasonable attorneys' fees.
Team Plan. A self-service sign-up online learning platform that offers on-demand courses to businesses and their employees is referred to as "Team Plan." Customers who are only purchasing Team Plan must fill out an electronic Order Form online. Unless cancelled by either party with at least 30 days' written notice prior to the end of the then-current term or by turning off auto-renewal within the Services, Order Forms will automatically renew.
Third Party Transactions. Except for terms relating to pricing, billing, invoicing, and payment, this Agreement still applies if Services are purchased by a customer from a LifeMentor authorized reseller; all other terms of the purchase shall be as agreed to by the customer and the reseller. Sections 2 (Provision of the Services), 3 (Terms of Use), 4 (Violations of Terms of Use), 8 (Processing of Personal Data), 11 (Warranties and Disclaimers), 12 (Limitation of Liabilities), and 18 (Governing Law, Venue, and Attorneys' Fee) of this Agreement are applicable if the Services are bought by a customer of a third-party partner of LifeMentor.
Entire Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter and constitutes the entire agreement between the parties with respect to the subject matter hereof. Any terms or conditions in any purchase order or other documentation provided by Customer shall be ineffective and superseded by this Agreement and any mutually executed Order Forms, which shall take precedence over all such terms and conditions. The English language versions of any such documents, even if LifeMentor has provided you with a translation of the English language version of this Agreement or any other document referred to in this Agreement, will prevail in all cases.
