Customer Terms of Service
EFFECTIVE DATE: APRIL 4, 2017
This Subscriber Agreement (the “Subscriber Agreement”) is between TRAVITOR MEDIA, LLC, a Nevada corporation (“TRAVITOR MEDIA”) and the organization agreeing to these terms (“Customer”). This Subscriber Agreement governs Customer’s access to Travitor’s collaborative learning management service (the “Service”) and its associated applications and website. By attaching this Subscriber Agreement to a purchase order or similar order form, or using the Service as a paid subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is entering into this Subscriber Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that he has the power and authority required to bind such organization to this Subscriber Agreement.
1.1 “CUSTOMER Data” means all information entered into the Hosted System by CUSTOMER, excluding, for the avoidance of doubt, any third-party content uploaded to the Hosted System by CUSTOMER.
1.2 “Host Server” means the server provided by TRAVITOR MEDIA or its agent through which CUSTOMER accesses the Hosted System, identified by a URL and one or more accounts and passwords to be established by CUSTOMER (or by TRAVITOR MEDIA on behalf of CUSTOMER, if mutually agreed to by the parties).
1.3 “Hosted System” means TRAVITOR MEDIA’s proprietary software system for hosting training materials, together with (a) all updates and upgrades thereto, (b) all content displayed therein (other than Customer Data and content owned by third parties), and (c) all online documentation related to the foregoing.
1.4 “Intellectual Property Rights” means inventions, patent applications, patents, design rights, utility models, copyrights, trademarks and service marks (together with all goodwill related thereto), trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection and proprietary rights of a similar nature anywhere in the world, whether or not registered.
1.5 “Service Order(s)” means the documentation, including telephonic and online transactions, by which CUSTOMER orders Hosted System license subscriptions and Services, as may be agreed to by the parties in connection with the parties entering into this Agreement.
1.6 “Services” means the offering of non-exclusive electronic access to the Hosted System via the Host Server, all as more specifically identified herein.
2. Right to Use the Services
2.1 Subscription Rights Granted. Subject to the terms and conditions of this Agreement and subject to the payment of any applicable fees, TRAVITOR MEDIA hereby grants CUSTOMER a non-exclusive, non-transferable (except as permitted by Section 10.4), worldwide, non-sublicensable right to use and access the Services selected in the Service Order(s), subject to the terms and conditions of this Agreement and any end user license agreement CUSTOMER’s users agree to in connection with their use of the Service, for the creation, management and tracking of CUSTOMER Data for internal business use and for use by CUSTOMER’s customers, in each case in accordance with TRAVITOR MEDIA’s documentation.
2.2 Account Access. CUSTOMER users may include CUSTOMER employees and customers. CUSTOMER is responsible for the confidentiality and use of account names and passwords. Any communication, data transfer, or use of the Services under CUSTOMER account names and passwords will be deemed to be for CUSTOMER’s benefit and use. Customer is solely responsible for ensuring that only appropriate individuals have access to the Services, that such individuals have been trained in proper use of the Services, and for ensuring proper usage and confidentiality of passwords, tokens and access procedures. TRAVITOR MEDIA reserves the right to refuse registration of, or to cancel, accounts that violate the terms of this Agreement or any end user license agreement agreed to by CUSTOMER’s users. CUSTOMER agrees to notify TRAVITOR MEDIA immediately if any of CUSTOMER’s account names or passwords are lost, stolen, or being used in an unauthorized manner.
2.3 Restrictions. During the Term (as defined in Section 4.1) and thereafter, CUSTOMER shall not, and shall not permit any of its employees, contractors or users to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than CUSTOMER’s customers; (b) use or demonstrate the Services in any other way that is in competition with TRAVITOR MEDIA; (c) reverse engineer, disassemble or decompile the Hosted System or attempt to derive the source code or underlying ideas or algorithms of any part of the Hosted System (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (f) use the Services in a manner that interferes or attempt to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (h) use the Services in a manner which interferes with or disrupt its integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (j) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which CUSTOMER does not have sufficient rights; (iv) pornography or other adult materials offensive to community standards; (v) harassing, tortious, or defamatory materials; or (vi) other materials prohibited by applicable international, federal, state, or local laws and regulations. CUSTOMER agrees to fully comply with all federal, state, and local privacy laws in connection with its and its users’ use of the Services. CUSTOMER is responsible for obtaining access to the Internet using software and hardware that meets CUSTOMER’s and TRAVITOR MEDIA’s minimum requirements, including security requirements. Customer’s authorized use of the Services is subject to (A) the purchased quantities and features set forth in the applicable Service Order, (B) any other policies of TRAVITOR MEDIA made available on its website, (C) any usage guidelines and acceptable use policies applicable to Customer’s usage of the Services and/or any cloud computing services delivered by a third party service provider (such as Amazon Web Services) or a security provider, and (D) any end user license agreement entered into by CUSTOMER’s users in connection with their use of the Services. If CUSTOMER is in material breach of any of its obligations set forth in this Section, in addition to any of its other rights or remedies set forth in this Agreement or otherwise available at law or in equity, TRAVITOR MEDIA reserves the right to immediately suspend use of the Services without liability until such breach is cured.
2.4 U.S. Government Customers. In addition, if CUSTOMER is an entity, agency, authority, bureau, commission or other instrumentality of any nature whatsoever of any governmental or quasi-governmental unit of the United States, then CUSTOMER acknowledges that TRAVITOR MEDIA provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as set forth in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with TRAVITOR MEDIA to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
2.5 Hosting; Modifications. The Services operate on one or more third party cloud computing platforms. TRAVITOR MEDIA may change or add to the cloud computing platforms on which the Services operate. TRAVITOR MEDIA may modify the features and functionality of the Services at any time and CUSTOMER’s continued use of the Services shall be deemed its acceptance of such changes.
2.6 Verification. TRAVITOR MEDIA may (but has no obligation to) audit CUSTOMER’s use of the Services electronically at any time during the Term or thereafter upon reasonable notice, directly or through a third party, in order to confirm that Customer is in compliance with the terms of this Agreement and any applicable end user license agreement. Customer agrees to fully cooperate in connection with any such audit and to make all changes requested by TRAVITOR MEDIA required to cure any unauthorized access of the Services and for Customer to comply with the other requirements of this Agreement and any applicable end user license agreement.
2.7 Feedback. In the event CUSTOMER provides any suggestions, ideas, enhancement requests, or feedback (“Feedback”) to TRAVITOR MEDIA with respect to the Services, TRAVITOR MEDIA may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any TRAVITOR MEDIA product or service.
2.8 Service Levels. The service levels shall apply to CUSTOMER’s use of the Services, but only during the term of any Service Order.
2.9 No Other Services. The Services do not include any services other than as expressly set forth herein. TRAVITOR MEDIA shall not be obligated to perform any other service for CUSTOMER except as set forth in a written agreement executed by both parties. TRAVITOR MEDIA may use subcontractors in connection with the performance of the Services, provided that it shall be responsible for the acts and omissions of its subcontractors to the same extent as it would be responsible hereunder for its own acts and omissions.
3. Intellectual Property Rights; Data
3.1 Intellectual Property Ownership. TRAVITOR MEDIA (and its licensors, where applicable) owns and shall continue to own all right, title and interest in and to the Hosted System, including all Intellectual Property Rights, and all Deidentified Data (as defined in Section 3.4). All rights not expressly granted to CUSTOMER are reserved by TRAVITOR MEDIA. This Agreement is not a sale and does not convey any rights of ownership in or related to the Services or the Deidentified Data or any other TRAVITOR MEDIA technology or Intellectual Property Rights. The TRAVITOR MEDIA name, logo, and product names associated with the Services are trademarks of TRAVITOR MEDIA or third parties, and no right or license is granted to use them.
3.2 License to CUSTOMER Intellectual Property Rights. As between the parties, CUSTOMER’s name and logo are owned by CUSTOMER, including any Intellectual Property Rights associated therewith (collectively, the “CUSTOMER Branding”), and any goodwill associated therewith shall inure solely to the benefit of CUSTOMER and its licensors. Subject to the terms and conditions of this Agreement, CUSTOMER hereby grants to TRAVITOR MEDIA a limited, non-exclusive, royalty-free license, with no right to sublicense, to use the CUSTOMER Branding during the Term solely for the limited purposes of TRAVITOR MEDIA’s performance under this Agreement, including the private labeling of the version of the Services used by CUSTOMER and its authorized users. TRAVITOR MEDIA’s license to use such CUSTOMER Branding is conditioned upon TRAVITOR MEDIA’s compliance with all guidelines, policies, rules and procedures or other instructions provided in writing to TRAVITOR MEDIA by CUSTOMER relating thereto. All rights in and to the CUSTOMER Branding not expressly granted herein are reserved.
3.3 CUSTOMER Data. CUSTOMER shall retain all right, title and interest in and to all CUSTOMER Data stored or retrieved in connection with CUSTOMER’s use of the Services. CUSTOMER represents and warrants that it has the rights to all CUSTOMER Data, including the right to upload CUSTOMER Data to the Host Server in connection with its use of the Services. CUSTOMER represents, warrants and covenants to TRAVITOR MEDIA that the CUSTOMER Data and its use by TRAVITOR MEDIA as contemplated by this Agreement, including the back-up or archival of CUSTOMER Data, does not and will not infringe the rights of CUSTOMER or any third party. CUSTOMER agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. As between the parties, CUSTOMER is solely responsible for the content, quality and accuracy of CUSTOMER Data, for securing any necessary approvals for TRAVITOR MEDIA’s use of the CUSTOMER Data as provided for herein, and for ensuring that the CUSTOMER Data as made available by CUSTOMER complies with applicable laws and regulations. TRAVITOR MEDIA is not responsible for CUSTOMER Data once it leaves the Services, including by way of example, if CUSTOMER downloads a report from the Services to a CUSTOMER personal computer.
3.4 License to Customer Data. Notwithstanding any other restrictions on use of data in this or any other agreement between the parties, CUSTOMER grants TRAVITOR MEDIA the limited, non-exclusive right to view, modify, collect and use the CUSTOMER Data, including to create meta-data derived from CUSTOMER Data (which may include, by way of example, file encryption, file modification dates, audit trails, and the number of times a file has been accessed), solely for the purpose of providing the Services to CUSTOMER. In addition, during the Term and thereafter, CUSTOMER grants TRAVITOR MEDIA the right to collect and use such meta-data and any deidentified information derived from the CUSTOMER Data (collectively, the “Deidentified Data”) for TRAVITOR MEDIA’s business purposes, including analyzing customer needs and the performance of the Hosted System and marketing and promoting the Services.
3.5 Data Security. When required by TRAVITOR MEDIA, CUSTOMER agrees to access the Services using the third-party software programs (including Internet browsers) which support data security protocols compatible with those specified by TRAVITOR MEDIA. TRAVITOR MEDIA agrees to back-up and maintain the security of CUSTOMER Data using commercially reasonable industry-standard back-up tools and data security protocols, and other commercially reasonable methods reasonably deemed to be adequate for secure business data and to notify CUSTOMER in the event of a breach of security involving CUSTOMER Data of which TRAVITOR MEDIA becomes aware.
4. Term and Termination
4.1 Term. The term of this Agreement shall commence on the effective date of the initial Service Order between the parties and shall remain in effect for an initial term of one year (“Initial Term”). Thereafter, the term of the Service Order and this Agreement shall automatically renew for additional one-year terms (each, a “Renewal Term,” and, together with the Initial Term, the “Term”), unless either party gives 60 days’ advance written notice prior to the end of the Initial Term or any Renewal Term, as applicable, of its intent to not renew the Service Order or this Agreement.
4.2 Termination for Breach. Either party may terminate this Agreement if the other party commits a material breach (including CUSTOMER’s failure to pay any undisputed fees when due) that remains uncured after ten business days’ written notice specifying the nature of the breach and identifying in reasonable detail the measures required to correct the breach. Additionally, in the event CUSTOMER breaches any material term of this Agreement, in addition to other remedies, TRAVITOR MEDIA may in its sole discretion: (a) suspend CUSTOMER’s or any CUSTOMER user’s access to the Services during the cure period for such material breach, or (b) require advance payment in full for the remainder of the Initial Term or Renewal Term, as applicable.
4.3 Effect of Termination. Termination of this Agreement shall not preclude either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve CUSTOMER’s obligation to pay all fees that have accrued or are otherwise owed by CUSTOMER under any Service Order or under this Agreement. Upon termination or expiration of this Agreement, (a) all unpaid fees due under this Agreement shall be due and payable in full immediately; (b) if (and only if) CUSTOMER terminates this Agreement due to TRAVITOR MEDIA’s uncured material breach, TRAVITOR MEDIA shall promptly refund to CUSTOMER all fees paid in advance as such fees relate to any unused periods (based on a monthly pro-rata basis); (c) so long as CUSTOMER has paid all fees then owing under this Agreement, TRAVITOR MEDIA shall allow CUSTOMER limited access to the Services for 30 days (the “Transition Period”) to allow CUSTOMER to view and retrieve any CUSTOMER Data stored on the Host Server and complete any pending transactions, after which Transition Period access to the Services shall be terminated; and (d) following the Transition Period, each party will use commercially reasonable efforts to return any tangible Confidential Information and destroy any electronic Confidential Information of the other party within its possession or control. CUSTOMER’s right to access the Services during the Transition Period does not include any technical support or maintenance services or access to the functionality of the Services. All provisions of this Agreement which by their nature are intended to survive the termination or expiration of this Agreement shall survive such termination or expiration, including the provisions of the following Articles and Sections: 1, 2.3, 2.6, 2.7, 3.1, 3.3, 4.3, 5.2, 5.3, 6, 7, 8.3, 9 and 10.
5.1 Representations and Warranties. TRAVITOR MEDIA represents and warrants that: (a) the Hosted System will perform in substantial conformity with its documentation, manuals, and specifications, (b) to its knowledge, there are no suits or proceedings pending or threatened which allege that the Services infringe any third party Intellectual Property Rights, (c) it has the valid right to grant to CUSTOMER all rights to the Services as granted herein, (d) the Services utilize security procedures in keeping with the current industry standards including prompt certification and installation of all security updates and patches from third party vendors, (e) the Services shall not materially adversely affect CUSTOMER’s computer, network, data, and/or related systems, (f) the Services to which TRAVITOR MEDIA will grant Customer access hereunder constitute the most current “general release” of the software programs contained in the Services, and have been beta-tested, (g) to its knowledge, the Services do not contain any viruses, “time bombs,” “worms,” “backdoors,” “drop dead dates,” or other disabling features that will materially adversely affect CUSTOMER’s use thereof (and if CUSTOMER makes TRAVITOR MEDIA aware of such defects in writing, TRAVITOR MEDIA will promptly use commercially reasonable efforts to correct such defects), (h) it possesses (and will continue to possess throughout the Term) all individual and corporate licenses required to provide the Services, and (i) the Services are (and will remain throughout the Term) in compliance with all federal and state laws and regulations.
5.2 Exclusive Remedy. For any breach of the warranties contained in Section 5.1 that CUSTOMER reports to TRAVITOR MEDIA within 60 days of discovery by CUSTOMER, CUSTOMER’s sole and exclusive remedy, and TRAVITOR MEDIA’s sole and exclusive liability, shall be for TRAVITOR MEDIA, at its expense, to use commercially reasonable efforts to correct such nonconformity within 30 days of the date that CUSTOMER notified TRAVITOR MEDIA of the breach; and, if TRAVITOR MEDIA fails to correct the breach within such cure period, CUSTOMER may terminate the then-current Service Order and, in such event, TRAVITOR MEDIA shall provide CUSTOMER with a pro-rata refund of any unused prepaid fees paid for the period following termination as calculated on a monthly basis. All errors not reported within such 60-day period are hereby deemed waived and accepted by CUSTOMER.
5.3 Disclaimer of Warranties. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TRAVITOR MEDIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT OR INFORMATION, (B) TRAVITOR MEDIA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE HOST SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THE SERVICES AND ALL CONTENT AND INFORMATION ARE PROVIDED STRICTLY ON AN “AS IS” BASIS, AND (D) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. Limitation of Liability
6.1 LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF (A) EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (B) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, (C) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (D) CUSTOMER’S BREACH OF SECTION 2.3, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF OR DAMAGE TO DATA OR SOFTWARE; OR LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE TOTAL OF THE FEES PAID AND PAYABLE BY CUSTOMER TO TRAVITOR MEDIA FOR THE THEN-CURRENT SUBSCRIPTION TERM OF THE SERVICE ORDER TO WHICH THE CLAIM RELATES.
7.1 Indemnity by TRAVITOR MEDIA. TRAVITOR MEDIA shall indemnify, defend and hold harmless CUSTOMER (and its officers, directors and partners) from and against any and all costs, liability, damage, loss or expense, including reasonable attorney’s fees (collectively, “Liabilities”), arising from any claim, demand, action or proceeding (“Claim”) brought by a third party based upon or arising out of an allegation that the Services as used by CUSTOMER in compliance with this Agreement infringe, misappropriate or otherwise violate the Intellectual Property Rights of a third party, except that TRAVITOR MEDIA shall not be responsible for any Claim to the extent arising from (i) use of the Services in violation of the terms of this Agreement, or (ii) use of the Services in combination with software, hardware, systems or data provided or controlled by CUSTOMER or a third party to the extent the Claim would not have arisen but for such combination. If the Services become, or in TRAVITOR MEDIA’s opinion are likely to become, the subject of a valid claim of infringement, misappropriate or other violation of Intellectual Property Rights, TRAVITOR MEDIA may, at its option and expense: (A) obtain for CUSTOMER a license permitting the continued use of the Services, (B) replace or modify the Services so that they become non-infringing, or (C) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Service Order and provide CUSTOMER with a pro-rata refund of any unused prepaid fees paid for the period following termination as calculated on a monthly basis.
7.2 Indemnity by Customer. CUSTOMER shall indemnify, defend and hold harmless TRAVITOR MEDIA against all Liabilities arising out of any Claim brought by a third party based upon or arising out of (a) the breach by CUSTOMER of any of its obligations or covenants hereunder; (b) the CUSTOMER Data or the disclosure, distribution or use of the CUSTOMER Data as permitted hereunder; or (c) an allegation that the CUSTOMER Branding or the CUSTOMER Data infringes, misappropriates or otherwise violates a third party’s Intellectual Property Right(s) or other rights.
7.3 Indemnification Procedure. A party seeking indemnification hereunder (the “Indemnified Party”) shall provide the other party (the “Indemnifying Party”) with: (a) prompt written notice of any claim subject to indemnification; provided, however, that the Indemnifying Party shall not be relieved of any indemnification obligation hereunder except to the extent it is materially prejudiced as a result of the Indemnified Party’s failure to provide prompt written notice; and (b) reasonable assistance to defend or settle such claim at the Indemnifying Party’s expense. The Indemnifying Party shall have sole control of the defense and all related settlement negotiations of such claim provided that the Indemnifying Party shall not agree to any settlement or compromise that results in any admission on the part of the Indemnified Party, or imposes any obligation or liability on the Indemnified Party, without the Indemnified Party’s prior written consent. The Indemnified Party may participate in the defense and settlement negotiations of such claim through its own counsel at its own expense.
8. Payment Provisions
8.1 Payment. CUSTOMER shall pay all fees for the Services for the Initial Term in advance prior to commencement of the Services. Payment of all other fees due under any Service Order(s) shall be due within 30 days of CUSTOMER’S receipt of such invoice. If any portion of the fees remains unpaid as of its due date, TRAVITOR MEDIA may assess interest at a rate equal to the lesser of 1.5% per month, compounded monthly, or the maximum rate allowable under applicable law, from the date the payment was due until the date TRAVITOR MEDIA receives the payment. Except as otherwise expressly specified herein, all payment obligations are non-cancelable and all fees paid are nonrefundable.
8.2 Billing. Additional users above the number specified in the Service Order(s) during the Initial Term will be billed to CUSTOMER monthly and will be subject to the payment terms set forth in Section 8.1. Monthly billing after the Initial Term will include the recurring monthly or yearly base subscription fee specified in the Service Order(s), and recurring fees for optional services specified in the Service Order(s). TRAVITOR MEDIA may alter pricing for any aspect of the Services at any time after the conclusion of the Initial Term or any Renewal Term, as applicable, by providing CUSTOMER with 30 days’ advance written notice to CUSTOMER.
8.3 Taxes. The fees listed in this Agreement do not include taxes; if TRAVITOR MEDIA is required to pay sales, use, property, value-added, withholding, excise or other taxes, duties, or governmental charges or Services provided under this Agreement or on CUSTOMER’s use of the Services, then such taxes, duties, or governmental charges shall be billed to and paid by CUSTOMER. If TRAVITOR MEDIA is found to be responsible for the withholding and payment of taxes on behalf of CUSTOMER, CUSTOMER agrees to promptly reimburse TRAVITOR MEDIA for the full amount of taxes due, together with applicable interest and penalties. If CUSTOMER is required to withhold any tax from any payment due to TRAVITOR MEDIA hereunder, then the amount of the payment will be automatically increased to completely offset such tax so that the amount remitted to TRAVITOR MEDIA, net of all taxes, equals the amount invoiced or otherwise due. This Section shall not apply to taxes based on TRAVITOR MEDIA’s net income.
9.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means (a) with respect to both parties, the terms of this Agreement and all other information clearly identified as confidential (either orally or in writing), (b) with respect to TRAVITOR MEDIA, the Services (including each individual component thereof) and the pricing for the Services, and (c) with respect to CUSTOMER, the Customer Data. Notwithstanding the foregoing, a party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party.
9.2 Disclosure Required by Law. In the event that either party is required by law to disclose any of the other party’s Confidential Information, the party receiving such disclosure request will provide the other party with immediate written notice of any such request or requirement so that such party may seek an appropriate protective order or other relief, and the party receiving such disclosure request shall only disclose only that information that is legally required to be disclosed.
9.3 Protection of Confidential Information. Each party agrees to utilize best industry practices to secure and protect the other party’s Confidential Information, including by ensuring that only such party’s personnel with a “need to access” Confidential Information in order to perform obligations hereunder will in fact have access to such Confidential Information, and then only to the extent necessary. The receiving party will use the disclosing party’s Confidential Information solely as necessary in connection with the performance of this Agreement.
9.4 Customer List. Notwithstanding anything to the contrary set forth herein, during the Term and thereafter, TRAVITOR MEDIA may refer to CUSTOMER as a TRAVITOR MEDIA customer, orally and in writing (including in promotional or marketing materials, and regardless whether in the form of news releases, advertising or solicitation materials, or blog or social media postings).
10. General Terms
10.1 Governing Law and Dispute Resolution. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Nevada, without giving effect to principles regarding conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be submitted to the following procedure: (a) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (b) if no resolution is reached within 60 days of the settlement conference, the parties will submit the dispute to non-binding mediation in Clark County, Nevada under the mediation rules of the American Arbitration Association; and (c) if no settlement is reached within 60 days of the start of mediation, either party may seek legal redress in the state or federal courts of Clark County, Nevada. Each party submits to the exclusive jurisdiction of these courts, agrees to file all pleadings in connection with the subject matter of this Agreement in such courts, and waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in such courts. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10.2 Notice. CUSTOMER shall notify TRAVITOR MEDIA of any changes to CUSTOMER’s business address, business contact, and support contact within ten days of any change thereto. All notices and other communications required or permitted hereunder shall be given in writing and delivered (a) in the case of CUSTOMER, to the email address on the then-current Service Order or otherwise associated with CUSTOMER’s account in TRAVITOR MEDIA’s records, or (b) in the case of TRAVITOR MEDIA, to email@example.com. Notices shall be deemed delivered upon successful transmission of an email containing such notice if sent between 9 a.m. and 5 p.m., local time of the recipient, on any business day, and as of 9 a.m. local time of the recipient on the next business day if sent at any other time.
10.3 Counterparts. This Agreement may be executed (including by pdf or other electronic signature) in any number of counterparts, each of which shall be an original and all of which shall constitute together but one and the same document. Delivery of an executed counterpart of this Agreement, by any electronic means intended to preserve the original graphic and pictorial appearance of the document, has the same effect as delivery of an executed original of this Agreement.
10.4 Assignment. CUSTOMER may not assign this Agreement or any rights or obligations hereunder without the prior written consent of TRAVITOR MEDIA, which consent shall not be unreasonably withheld; any such assignment without prior consent shall be null and void. Notwithstanding the foregoing, CUSTOMER may assign this Agreement to any entity who acquires (by merger, acquisition, or otherwise) all or substantially all of the business assets of CUSTOMER applicable to the subject matter of this Agreement. TRAVITOR MEDIA may freely assign this Agreement in whole or part. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties, their successors, and their permitted assigns.
10.5 Force Majeure. Neither party shall be liable for any breach of this Agreement to the extent that such breach arises from factors outside its reasonable control. CUSTOMER’s subscription to the Services is predicated on CUSTOMER’s use of cloud computing services provided by a third party cloud service provider, and TRAVITOR MEDIA will not be responsible for the acts or omissions of CUSTOMER’s cloud service provider or any other CUSTOMER vendor.
10.6 Entire Agreement. This Agreement, including all Service Orders and any attachments referenced herein, (a) constitutes the complete agreement between the parties with respect to the subject matter hereof, (b) supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement, and (c) may only be modified by a writing executed by both parties. This Agreement shall govern with respect to all Service Orders and forms of purchases, whether submitted through electronic transmissions or otherwise, unless otherwise agreed by both parties in writing. Unless a Service Order expressly refers to this Agreement and expresses an intent to amend it, the terms and conditions of this Agreement shall take precedence over any conflicting terms in the Service Order. If CUSTOMER issues a purchase order in connection with a Service Order, such purchase order shall be solely for CUSTOMER’s internal administrative purposes and to facilitate payment. In no event shall the terms of such purchase order modify or become part of this Agreement or become binding on TRAVITOR MEDIA even if TRAVITOR MEDIA signs an acknowledgment copy of such purchase order.
10.7 Other Terms. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. All rights and licenses granted to CUSTOMER in this Agreement shall apply to CUSTOMER’s affiliates, provided CUSTOMER remains fully liable for the acts and any omissions of its affiliates under this Agreement. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses, in addition to any other relief to which the party may be entitled. For all purposes of this Agreement: (a) any reference to a “Section” refers to a Section of this Agreement; (b) all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; (c) the term “or” is not exclusive; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement; (e) the words “including,” “included” and “includes” mean inclusion without limitation; and (f) this Agreement has been jointly negotiated by the parties and their respective legal counsel, and any legal or equitable principles that might require or permit the construction of this Agreement or any provision hereof against the party drafting this Agreement shall not apply in any construction or interpretation of this Agreement.
Service Level Agreement
EFFECTIVE DATE: APRIL 4, 2017
This Service Level Agreement (this “SLA”) is an Addendum to the concurrently executed Service Agreement (“Agreement”) to which this SLA is attached. The parties agree as follows:
1.1 Travitor warrants that the Services will be available to be accessed at least 99.9% (“Uptime”) of each full calendar month during the term of the Service Order to which this SLA applies, subject to the remaining clauses of this SLA.
1.2 If TRAVITOR MEDIA fails to meet the Uptime service level and CUSTOMER has complied with the provisions of this SLA, then CUSTOMER may claim the following service level credits (each, a “Service Credit”) against CUSTOMER’s monthly fee for the Services. TRAVITOR MEDIA will provide an invoice credit against CUSTOMER’s next invoice.
Uptime Percentage in a full calendar month
99.9% – 100%
No credit – Uptime is met.
10% of the monthly Fee
30% of the monthly Fee
1.3 Uptime will be calculated monthly by TRAVITOR MEDIA and such calculation will be deemed binding on the parties in absence of manifest error. Upon request TRAVITOR MEDIA will provide CUSTOMER with a report setting out the Uptime for the previous calendar month. There is no Uptime service level provided for partial months.
1.4 If CUSTOMER wishes to claim a Service Credit, it must provide written notice to TRAVITOR MEDIA setting out the claim for a Service Credit, such notice to be received by TRAVITOR MEDIA within 10 days of CUSTOMER’s date of receipt of the Uptime report. If no such notice is received by such date, CUSTOMER hereby waives its rights in respect of the failure to meet the Uptime warranty.
1.5 When calculating Uptime, any failure to meet the Uptime standard that is directly or indirectly caused by any one or more of the following items shall not constitute a failure to achieve Uptime:
a) scheduled maintenance of the Hosted System;
b) a malfunction or failure of any network, including the internet, that is not part of the Services;
c) the CUSTOMER Data, any other CUSTOMER content, and any software owned or used by CUSTOMER other than the Services;
d) any unlawful, negligent or willful act or omission, by CUSTOMER, its agents or contractors or any other person (other than a person who is acting for and on behalf of TRAVITOR MEDIA or its contractors);
e) any breach by CUSTOMER of this Agreement, any end user license agreement for the Services, or any other agreement between the parties;
f) any act or omission of a third party (other than TRAVITOR MEDIA or its contractors);
g) any force majeure event.
1.6 TRAVITOR MEDIA will use its commercially reasonable efforts to respond to requests for technical support within 24 hours of notification. Support is available via phone, live chat and e-mail. TRAVITOR MEDIA guarantee the availability of telephone support Monday through Friday, 6:00 AM to 5:00 PM (PST).
User Terms of Service
EFFECTIVE DATE: APRIL 4, 2017
The Service allows you to create courses and associated information, text, files and other materials (together the “Content”) and to share that Content with others. You retain ownership of your Content, but by uploading it onto the Service, you are granting us a license to use, copy, reproduce, process, adapt, publish, transmit, host and display that Content for the purpose of (i) providing you the Service and associated support; and (ii) analyzing and improving the operation of the Service.
We reserve the right to remove Content on the Service that violates our Acceptable Use Policy or these Terms or that we otherwise reasonably believe may create liability for Travitor.
You must provide accurate information when you create your Travitor account.
You are responsible for safeguarding the password and for all activities that occur under your account. You should notify Travitor immediately if you become aware of any breach of security or unauthorized use of your account.
You must comply with our Acceptable Use Policy at all times when using the Service.
You may never use another user’s account without permission.
You may not disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.
Our Service is not intended for use by persons under the age of 13. By using the Service you are representing to us that you are over the age of 13.