This Master Services Agreement (this “Agreement” ) governs the access and use of one of more Services (as defined in Section 1 below) purchased from Learnybee, Shineywise Technologies OPC Private Limited and/or its Affiliate(s) (collectively, “Learnybee” ). By accepting this agreement or by using the services, customer acknowledges it has read, understands, and has the authority to enter into this agreement.
Definitions. As used in this Agreement, the following terms have the meaning set forth below.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement.
“Customer” means the party entering into this Agreement and or an Order Form with Learnybee.
“Fees” means the amounts payable by Customer to Learnybee for access to the Services.
“Order Form” means the ordering document mutually executed by Learnybee and Customer specifying: (i) the Service(s) purchased, (ii) the number of licenses purchased, (iii) Fees payable by Customer to Learnybee for provision of the Services, (iv) the subscription period of the Services to be provided by Learnybee 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 Learnybee 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.
“Learnybee” means Learnybee, Inc., or one of its Affiliates.
“Users” means the employees and contractors that Customer authorizes to access and use the Services.
Provision of the Services. Learnybee agrees to make the Services available to Customer and its Users pursuant to the terms of this Agreement, and as specified in an Order Form. Where an Affiliate of Customer wishes to access or use the Services, such Affiliate must request Affiliate status and enter into its own separate Order Form governed by this Agreement, and then for purposes of that Order Form, the Affiliate shall be deemed the “Customer,” responsible for its performance and all obligations to Learnybee thereunder; provided, however, Customer shall be and remain responsible for the acts and omissions of any of its Affiliates. For certain Services, additional Service-specific terms may apply, which can be found at https://learnybee.in/pages/terms-of-service and/or will be attached to Customer’s Order Form.
Terms of Use.
Customer shall not, nor shall it permit its Users to:
(i) use the Services in any manner that is unlawful or that infringes the rights of others;
(ii) copy, distribute, resell, create derivative works from, hack, modify, or interfere with, including through the introduction of any computer code, file, or program that may cause damage to, the proper working of the Services, any of the Courses, or any third-party system made available through the Services;
(iii) input any infringing, racist, hateful, sexist, pornographic, harassing, defamatory, libelous, or other similar inappropriate content into the Services or instruct Learnybee to include any such content in the Services;
(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 Learnybee;
(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 for supplementing learning and training of Users; or
(viii) permit any individual who is legally incapable of giving consent for the use of online services or the collection and processing of their personal data to use the Services (e.g., individuals under 13 years old in the U.S.)
Customer represents and warrants that neither it nor its Users are
(i) located in, or a resident of, any country that is subject to applicable U.S. trade sanctions or embargoes, or
(ii) a person or entity who is named on any U.S. government specially designated national or denied-party list. Customer shall not permit any User to access or use the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.
Violations of Restrictions. If Learnybee determines that Customer or any of its Users has violated the restrictions set forth in Section 3 above (collectively, the “Terms of Use”), and if such violation is remediable Learnybee shall notify Customer of such violation. If Customer fails to cure such violation within ten (10) days, then Learnybee may terminate or suspend access to the Services for Customer or the relevant Users. Separately, Learnybee may remove or edit inappropriate content or activity identified by or reported to us.
Fees. Customer will pay the Fees as set forth in one or more Order Forms. Unless stated otherwise in an Order Form, all fees are payable in US dollars. Any future incremental add-on or renewal orders after the initial subscription period (as set forth in an Order Form) shall be subject to the subscription standard price in effect at time of purchase. In the event that Customer is late in making payments, Learnybee reserves the right to charge the greater of 1.5% interest per month or the maximum interest permitted by law, and Customer will be liable for all third-party collection costs.
Taxes. The Fees are stated exclusive of all federal, state, local, and foreign taxes, levies, and assessments of any nature, including value-added, use, or withholding taxes. Customer agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed on Customer arising out of this Agreement, excluding any tax based on Learnybee’s income, gross receipts, business and occupation tax, and employment-related taxes. If tax withholding is required, Customer will pay the required amount to the relevant governmental authority and produce a withholding tax certificate to Learnybee while remitting the residual to Learnybee.
Confidentiality.
Each party agrees that all code, inventions, know-how, or business, technical, and financial information disclosed to a party (the “Receiving Party”) by the disclosing party (the “Disclosing Party”), constitute the confidential information of the Disclosing Party (“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 due to the nature of the information disclosed. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to 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 through no action or inaction of the Receiving Party, (iii) is already in the possession of the Receiving Party at the time of disclosure by the Discloser, (iv) is obtained by the Receiving Party from a third party without a known breach of the third party’s obligations of confidentiality, or (v) is independently developed by the Receiving Party without use of or reference to the Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law provided that the Receiving Party will use reasonable efforts to seek confidential treatment for such Confidential Information, and, if and as permitted by law, will provide prior notice to the Discloser to allow the Discloser to seek protective or other court orders.
Except as expressly authorized herein or as necessary to perform its obligations hereunder, 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 hereunder.
Processing of Personal Data.
Customer agrees that Learnybee 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 Learnybee a data protection agreement prior to providing any Personal Data to Learnybee. 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 commence on the Effective Date, and will continue until all Order Forms hereunder have expired or have been terminated. The term of an Order Form will be specified as the Subscription Period therein and unless otherwise stated in such Order Form, the Subscription Period will renew automatically, unless terminated by either party by giving at least 30 days written notice prior to the end of the Subscription Period.
Termination for Material Breach. Either party may terminate this Agreement and any applicable Order Form(s) in the event that the other party materially breaches this Agreement, by providing 30 days’ written notice, unless such breach is cured during such 30-day notice period. In the event that Customer terminates this Agreement or any Order Form due to material breach by Learnybee, then Customer will be entitled to receive a pro-rated refund for Services not rendered past the termination date. The parties agree that those provisions that by their nature are intended to survive the termination of this Agreement shall survive the termination notwithstanding the cause of termination.
Irrespective of any cure periods stated in this Agreement, Learnybee reserves the right in its sole discretion to terminate or suspend access to the Services for Customer or the relevant Users at any time if immediate action is required to prevent or protect against fraud or to address imminent potential harm or damages.
WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE AGREED BY THE PARTIES, Learnybee PROVIDES THE SERVICES AS-IS AND DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, THE COURSES, AND ANY THIRD-PARTY SYSTEMS OR PLATFORMS ACCESSIBLE THROUGH THE SERVICES, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES RELATING TO MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR AVAILABILITY.
Limitation of Liabilities.
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 Learnybee IN THE 12 MONTHS PRIOR TO THE DATE THE RELEVANT CLAIM AROSE.
Notwithstanding the limitation of liability set forth above:
(i) any indemnified liability and any liability arising from violation of the Terms of Use will not be limited, and
(ii) each party’s liability arising from breach of its confidentiality obligations hereunder, will be limited to three times the Fees paid or payable by Customer to Learnybee in the 12 months prior to the date the relevant claim arose.
Indemnification.
Learnybee's Indemnification Obligations. Learnybee agrees to defend Customer for any third-party claim arising from an allegation that the Services infringes a third party’s intellectual property rights (“Claim Against Customer”), and indemnify Customer from any proven damages, reasonable attorney fees, and associated reasonable costs and expenses (“Losses”) incurred by Customer as a result of a Claim Against Customer. In the event that the Services become subject to a third-party intellectual property claim, or Learnybee believes that the Services will become subject to such a claim, then Learnybee may elect to:
(i) modify the Services so that they are no longer allegedly infringing,
(ii) obtain a license for Customer’s continued use of the Services, or
(iii) terminate this Agreement or any applicable Order Forms, and provide Customer a pro-rated refund for Services not rendered past the termination date.
This section states Learnybee’s sole liability to Customer with respect to a claim that any part of the Services infringes the intellectual property rights of a third party. Learnybee shall have no liability for any claim in respect of any Services to the extent that
(i) the Services are used by Customer outside the scope of the rights granted in the Agreement or in a manner or for a purpose other than that for which it was supplied or
(ii) the Services are modified by or on behalf of Customer.
Customer's Indemnification Obligations. Customer agrees to defend Learnybee for any third-party claim arising from Customer’s or its Users’ violation of the Terms of Use (“Claim Against Learnybee”), and indemnify Learnybee from any Losses incurred by Learnybee as a result of a Claim Against Learnybee.
Requirements for Indemnification. In order for the indemnification obligations hereunder to apply, the party seeking indemnification must:
(i) promptly tender a claim for indemnification,
(ii) allow the indemnifying party sole control of the defense or settlement of the underlying claim, and
(iii) reasonably assist with any defense or settlement of the underlying claim at the indemnifying party’s request and expense. Notwithstanding the foregoing, a party may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the other party or diminishes the other party’s rights, without obtaining the other party’s express prior consent, such consent not to be unreasonably withheld or delayed.
Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
Publicity. Customer grants Learnybee the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Learnybee’s website and in other promotional materials.
Force Majeure. Neither party will be liable for any delay in the performance of its obligations hereunder during, and to the extent caused by, a condition that is beyond a party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, interruption or failure by a third-party hosting or Internet provider or utility provider, governmental actions, or denial of service attacks.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect.
Governing Law Venue, and Attorney’s Fees. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. In the event of any dispute between the parties regarding the terms of this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.
Team Plan. "Team Plan" means an online learning platform delivering on demand Courses for businesses and their employees available through self-service sign-up. For Customers purchasing Team Plan only, an electronic Order Form must be submitted online. Order Forms will renew automatically, unless terminated by either party by giving at least 30 days written notice prior to the end of the then-current term or by disabling auto-renewal within the Services.
Third Party Transactions. Third Party Transactions. If Services are purchased by a customer of an authorized reseller of Learnybee, this Agreement continues to apply, other than terms related to pricing, billing, invoicing and payment, and instead the terms of purchase shall be as agreed to between Customer and Reseller. If Services are purchased by a customer of a third party partner of Learnybee, 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 applies.
Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Agreement and any mutually executed Order Forms shall apply in lieu of the terms or conditions in any purchase order or other documentation that Customer provides, and all such terms and conditions are null and void and superseded by this Agreement and any mutually executed Order Forms. Where Learnybee has provided you with a translation of the English language version of this Agreement or any document referenced in this Agreement, the translation is provided for your convenience only and the English language versions of any such document, will control.
Contracting Party, Governing Law, and Currency for Indian Customers. As of June 1, 2020, if Customer is located in India, then Customer is contracting with Learnybee India LLP under this Agreement. In such case, notwithstanding Section 18 above, this Agreement and any disputes arising under it will be governed by the laws of India, and both parties consent to the exclusive jurisdiction and venue of courts in Delhi, India for all disputes arising out of this Agreement. In addition, if Customer is located in India, notwithstanding Section 18 above, then any dispute, claim, or any non-payment (any of which shall be treated as a dispute) whether present or future, whatsoever between the parties under, arising out of, relating to or in connection with this Agreement shall be settled by mandatory arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 by a sole arbitrator mutually appointed by the parties and both parties consent to such mandatory arbitration. Either party may serve the other party with a notice in writing specifying the existence and nature of the dispute and the intention to refer the dispute to arbitration. If the parties are unable to agree on a sole arbitrator within 30 days of such notice, each Party shall appoint an arbitrator, and the arbitrators so appointed shall jointly appoint the third arbitrator. The award determined through arbitration shall be final and binding. The venue of such arbitration shall be in Delhi. The proceedings shall be conducted in English. Notwithstanding Section 5 above, if Customer is located in India, then all fees payable by Customer will be in Indian Rupees.