Service Terms of Use – ClassMercial

THIS Learning Resources & Associated Tools as A Service Agreement is entered into

Between

(1) ClassMercial by Ctailer Corporation whose principal place of business is at 20C Trolley Square, Wilmington 19806, Delaware, USA (the “Company“)

(2) The individual and or corporate user (the “Customer“)

Whereas

A. The Company offers Learning Resources & Associated Tools as A Service on the Company’s Platform at www.ClassMercial.com and or Partners websites.

B. The Customer desires to use the Learning Resources & Associated Tools of the Company to run and or improve its business operations through upskilling activities.

It is agreed as follows:

1. Interpretation

1.1 Definitions

Agreement means any agreement made subject to the terms and conditions below;

Learning Resources means all content in any format that pertain to knowledge sharing and skills development

Services means the use and access to the Company’s Learning Resources & Associated Tools, Platform and other offerings (including hosting and support services) will be provided to the Customer. The list and details of the resources and the specifications are available on the online platform, after login.

Tools means any document, system, software or process that can assist the Customer in the operationalization of a given Learning Resource

Platform means the virtualized environment hosted by the Company and accessible via the internet at www.ClassMercial.com as a well as third party platforms hosted by Company’s partners and providers.

1.2 In this Agreement, unless the context otherwise requires:

(a) references to persons include individuals, bodies corporate (wherever incorporated), unincorporated associations and partnerships;

(b) the headings are inserted for convenience only and do not affect the construction of the Agreement;

2. Responsibilities

2.1 The Company’s responsibilities are set out below:

The Company agrees to provide the Services to the Customer
The Company further agrees to provide the Services in a professional and diligent manner consistent with generally recognized industry standards and good commercial practice, using efforts comparable to those customarily used for similar services.
The Company shall comply with, and give all notices required by, all laws and regulations applicable to the Services, including all laws and regulations related to (i) anti-bribery and corruption, and (ii) data protection.

2.2 The Customer’s responsibilities are set out below:

In order to access the Services, the Customer must register for an account via the Website. The Customer shall be responsible to keep its account log-in details confidential and secure.
The Customer can share its credentials with employees, contractors, third party consultants to access the Service through the Website on behalf of the Customer. The Customer understands that any internal and or third-party access and use of the Service is solely for the Company’s internal business operations, limited to the official website of the Customer and subject to the terms and conditions of this Agreement.
The Customer shall immediately notify the Company of any violation of the terms of any of the Agreement by any of such Company’s authorized user(s) of the Service upon becoming aware of such violation.
The Customer shall be responsible for obtaining and maintaining any equipment, devices and ancillary services needed to connect to, access or otherwise use the Services, including without limitation, hardware, software, networking, and the like.

3. License to Use the Services

3.1 During the term of this Agreement, the Customer will receive a nonexclusive, non-assignable, non-transferable, royalty free, worldwide right and license to access and use the Services solely for Customer’s internal business operations subject to the terms of this agreement. The Customer understands that if this Agreement is terminated, access to the Services will automatically terminate.

3.2 The Customer understands that the Customer is granted access to the Services and in no event the Customer shall be granted any form of ownership to the materials, medias, tools and software made available under this Agreement

3.3 Subject to the clause below, the Company reserves all intellectual property rights (if any) which may subsist in any Material, Tools, Software, Documentation, deliverables, or in connection with, the provision of the Services. The Company reserves the right to take such action as may be appropriate to restrain or prevent the infringement of such intellectual property rights.

3.4 Any services outside of the scope as defined in Services will require a new Agreement for other services, agreed to by the Parties.

3.5 Where necessary Customer is to provide credentials to their website or platform for the Company to install and activate certain tools.

3.6 Customer support about installation and configuration of resources and tools made available to Customer is the responsibility of the Company and Customer understands that access to these resources under this agreement does not grant them the right nor the access to contact the third-party providers of the said resources.

4. Restrictions

4.1 The license granted to the Customer in this Agreement are subject to the restrictions that the Customer shall not:

copy the Materials, Software, Service or Documentation,
reverse engineer, disassemble, decompile, attempt to discover the source code or the object code or any algorithm, ideas, know-how relating to the Services or the Software
assign, merge, adapt, modify or alter, translate or create any derivative works based on any part or the whole of the Services and / or Software or Documentation
remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Services or in the Documentation,
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure
use a Service or Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
provide, or use any means to make available, the Materials and Software or in any form, in whole or in part to any third parties without prior written consent from the Company to do so;
access the Services to build a similar or competitive website, application or service
except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means;
remove or destroy any copyright notices or other proprietary markings contained on or in the Services; and
contact Third party resources providers about support for the use of the said resources that have been made available to Customer under this agreement
shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement;

4.2 Any unauthorized use of the Services terminates the licenses granted by the Company pursuant to this Agreement.

4.3 The Customer shall use the Services only in compliance both with Company’s SaaS Acceptable Use Policy found at https://classmercial.com/terms-of-use and with all applicable laws and regulations.

5. Payment Terms

5.1 The Customer shall pay the Company a fee (“Fee”) as set out in Schedule 2

5.2 The Customer shall pay the Fees from the Effective Date to the Company in Monthly or Yearly instalments or any other payment schedule available on our offers page or mutually agreed between Company and Customer. Offers, their pricing and payment terms are publicly available on this page: https://classmercial.com/pricing

If the Customer does not pay within 30 days after the invoice date, access to the resources & tools will be discontinued and within 60 days the Company will be entitled to terminate this Agreement and/or the provision of any of the Service to the Customer. Initially secured pricing will be lost and a new contract with current pricing would be necessary.

5.3 Without prejudice to any other right or remedy that the Company may have, if the Customer fails to pay the Company on the due date of payment, the Company may suspend the provision of any further Service until payment has been made in full.

5.4 The Fees exclude goods and services tax, value-added tax or any other applicable taxes, which (if any) shall be invoiced to or paid for directly by the Customer at the prevailing rate.

5.5 The Customer shall pay the Fees to the Company by such payment method as agreed by the Company in writing. Time is of the essence for the payment of the Subscription Fees.

5.6 Notwithstanding any other provision of this Agreement, all sums payable to the Company under this Agreement shall become due immediately upon termination.

5.7 The Company shall pay all amounts due under this Agreement in full without any deduction except as required by law, and shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any amount due, in whole or in part.

6. Intellectual Property

6.1 The Company owns all distribution rights, title and interest in the Service. The Learning Resources and Tools and any other materials are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, the Company grants you a limited license to use the Services solely for your internal business purposes and limited to one specific domain name. Any future release, update or other addition to the Services shall be subject to this Agreement. The Company, its suppliers and service providers reserve all rights not granted in this Agreement.

6.2 Neither the Company nor any of its directors, employees or agents warrant that the Service and/or Learning Resources and Tools will be uninterrupted or error-free, or give any warranty as to the results to be obtained from use of the resources and/or Service. In no event will the Company or its directors, employees or agents be liable to the Customer for any damage, (including, but without limitation, special, incidental, or consequential damage) arising from the use of, or inability to use (for whatever reason), the resources and/Service, including but not limited to damages resulting from loss of data or loss of profits or any other type of loss.

7. Limitation of Liability

7.1 To the maximum extent permitted by applicable law, neither the Company, nor their affiliates, nor any of the Company’s service providers, employees shall be liable in any way for loss or damage of any kind resulting from the use or inability to use the Services, Customer’s account, Software and services including, but not limited to, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will the Company be liable for any indirect, incidental, consequential, special, punitive or exemplary damages, or any other damages arising out of or in any way connected with the Services and any information available in connection therewith, or the delay or inability to use the Services, or any information, even in the event of the Company’s or its affiliates’ fault, tort (including negligence), strict liability, or breach of the Company’s warranty and even if it has been advised of the possibility of such damages. These limitations and liability exclusions apply even if any remedy fails to provide adequate recompense.

The Company’s sole and exclusive remedy for dissatisfaction with the Services or any third-party materials is to stop using the Services. Without limiting the foregoing, under no circumstances will the total aggregate amount that the company parties are liable to the Customer exceed the greater of the total amount actually paid to the Company by Customer during the twelve-month period prior to the act, omission or occurrence giving rise to such liability. The Customer holds the full responsibility as to the use and operationalization of the resources made available to the Customer.

8. Indemnification

The Customer agrees to indemnify, defend, and hold harmless the Company and its partners and providers, from any and all claims, liabilities, expenses, and damages, including reasonable attorneys’ fees and costs, made by any third party related to: (a) the Customer’s use or attempted use of the Service, Resources and/or Software in violation of this Agreement; (b) your violation of any law or rights of any third party.

9. Customer Data

9.1 Customer owns and accepts all responsibility for any data, information or material that Customer and its users process or submit to the Service in the course of using the Service, including any personally identifiable information (“Customer Data”). Customer agrees to separately back up all Customer Data. Customer at all times retains ownership of all Customer Data. Customer, and not the Company, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer is solely responsible for ensuring that any processing of Customer Data by the Company, its Partners and Providers and Customer via the Service is in compliance with all applicable laws. Customer shall provide notices to, and obtain any consents from, third parties as required by applicable law, rule or regulation in connection with Company’s processing of Customer Data via the Service.

Customer is responsible for the identification and understanding of the Privacy Policies and other compliance policies of Company and of its Partners and Providers, and is responsible for informing its own Customers about the full life cycle of their private data.

Company will abide by any Privacy and Compliance Rules applicable to its jurisdiction and Customer is encouraged to engage and cooperate with Company to comply with the laws of the jurisdiction of Customer and or of its users.

10. Liability Disclaimer

10.1 The Company is not responsible for any suspension or interruption of the Service and/or the Software or any other part of the system due to force majeure and other factors.

10.2 The Company does not guarantee that the system is stable and uninterrupted or that the resources available at one moment will be available in the future.

10.3 The Company will only provide the Customer with the Service based on its current function and current status, and reserves the right to modify all or part of each service function at any time. Resources are continually added, replaced or removed on the platform at the exclusive discretion of the Company.

10.4 The Company does not warrant that the Resources, Software and the Services will be error free, that its use will be uninterrupted, that it will meet the Customer’s requirements, that it will operate in combination with other programs of the Customer’s choice or that it will provide any function not designated in the Documentation and other user instructions. The Services are provided “as is” and the Company disclaims all warranties and conditions, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.

10.5 Whilst the Company uses its best endeavors to ensure all Customer’s data are secure and complete in the servers, we will not be liable for loss of profits or of contracts, loss of data, damage to your computer hardware or software, loss of business, loss of goodwill or reputation, loss of revenue, loss of anticipated savings, loss of business opportunity, loss of use, and/or consequential loss arising out of or in connection with this website or the information or data contained in it.

11. Confidential information

11.1 The Customer shall both during and after the arrangements contemplated by this Agreement have terminated:

(a) keep confidential the terms of this Agreement and all information, whether in written or any other form, which has been disclosed to it by or on behalf of any other party which by its nature ought to be regarded as confidential (including, without limitation, any business information in respect of any other party which is not directly applicable or relevant to the transactions contemplated by this Agreement); and

(b) procure that its officers, employees and representatives and those of its subsidiary companies keep secret and treat as confidential all such documentation and information.

11.2 Clause 11.1 does not apply to information:

(a) which shall after the date of this Agreement become published or otherwise generally available to the public, except in consequence of a willful or negligent act or omission by the recipient party in contravention of the obligations in clause 11.1;

(b) to the extent made available to the recipient party by a third party who is entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information to any other party or which has been disclosed under an express statement that it is not confidential;

(c) to the extent required to be disclosed by any applicable law or by any recognised stock exchange or governmental or other regulatory or supervisory body or authority of competent jurisdiction to whose rules the party making the disclosure is subject, whether or not having the force of law, provided that the party disclosing the information shall notify the other party of the information to be disclosed (and of the circumstances in which the e disclosure is alleged to be required) as early as reasonably possible before such disclosure must be made and shall take all reasonable action to avoid and limit such disclosure;

(d) which has been independently developed by the recipient party otherwise than in the course of the exercise of that party’s rights under this Agreement or the implementation of this Agreement;

(e) which, in order to perform its obligations under or pursuant to this Agreement, any party is required to disclose to a third party;

(f) disclosed to any applicable tax authority to the extent reasonably required to assist the settlement of the disclosing party’s tax affairs or those of any of its shareholders or any other person under the same control as the disclosing party; or

(g) which the recipient party can prove was already known to it before its receipt from the disclosing party.

11.3 The provisions of this clause 11 shall survive any termination of this Agreement.

12. Term and Termination

12.1 This Agreement shall commence on the date hereof (“Effective Date“) and shall continue the subscription period chosen by Customer:

(a) as provided by the terms of this Agreement; or

(b) by either Party giving to the other prior written notice of not less than the 30 days

12.2 If the Customer terminates the Agreement for any reason, the Customer will be billed 100% of total charge of the remaining period or the Customer can replace this Agreement with another agreement of equal or greater than the Agreement revenue commitments.

12.3 The Agreement shall be renewed automatically for successive one-year term and onwards unless either party provides the other with written notice of its intent to terminate one Quarterly prior to the end of the Agreement or any renewal period. The Agreement can be terminated by one Quarterly written notice during any such renewal period.

12.4 Without prejudice to any accrued rights or remedies available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if at any time a Party:

(a) commits any serious or repeated breach of any of the provisions of this Agreement;

(b) (in the case of the Company) is grossly negligent or incompetent in the performance of the Service;

(d) suspends or ceases to carry on all or a substantial part of its business;

(e) suspends or is unable to pay its debts when they fall due;

(f) is (where the Party is an individual) declared bankrupt or makes any arrangement with or for the benefit of his creditors;

(g) is (where the Party is an individual) incapable of performing his obligations under this Agreement (by reason of illness or incapacity or otherwise) for an extended period; or

(h) is (where the Party is an entity) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Party (other than for the sole purpose of a scheme for a solvent amalgamation or solvent restructuring).

12.5 All obligations and restrictions on the Customer under this Agreement will survive the termination of this Agreement and/or the termination of the provision of any of the Services. No waiver by either party of a breach of any provision of this Agreement, nor delay or omission to exercise any right, shall constitute a waiver of any other breach or default by the other party.

13. Force majeure

Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one (1) month, the Party not affected may terminate this Agreement by giving written notice of one (1) week to the affected Party.

14. Assignment and other dealings

Neither party shall without the prior written consent of the other party assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

15. No partnership or agency

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of any other Party.

15.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

16. Waiver

No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17. Entire Agreement

17.1 This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

18. Severance

18.1 If any provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

18.2 If there is any inconsistency between this Agreement and the Terms and Conditions, this Agreement will prevail.

19 Notices

19.1 Any notice so served by hand, e-mail or post shall be deemed to have been duly given:

(a) in the case of delivery by hand, when delivered;

(b) in the case of fax or electronic mail on a Business Day prior to 5.00 pm, at the time of receipt;

(c) in the case of prepaid recorded delivery, special delivery or registered post, at 10am on the second Business Day following the date of posting; or

(d) if sent by email, one (1) hour after the email is sent (unless a return email is received by the sender within that period stating that the addressee’s email address is wrong or that the message cannot be delivered).

provided that in each case where delivery by hand or by e-mail occurs after 5pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.

19.2 The addresses of the Company for the purpose of clause 19.1 is as follows:

Company

ClassMercial.com
20C Trolley Square
Wilmington, DE, 19806, USA
E-mail: contact page

20. Counterparts

This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

21 Right of third parties

A person who is not a party to this Agreement shall have no right under any law to enforce any of its terms.

22. Arbitration and Proper law

The parties shall use all reasonable endeavors to resolve any dispute amicably and in good faith.

This document is governed by and are to be construed in accordance with the laws of Delaware applicable therein.

All disputes controversy, difference or claim arising out of or in connection with this document, including any question regarding its existence, validity or termination, or any dispute regarding non-contractual obligations shall be finally settled under the arbitration rules of the American Arbitration Association by one or more arbitrators appointed in accordance with the said rules. The seat of Arbitration shall be Delaware and proceedings shall be conducted in English.