License Agreement for CROSSSAFE™ Course Materials

This License Agreement for CROSSSAFE™ Online Course Materials (this “Agreement”) is between Ottawa Safety Council (“OSC”, “we”, “us” or “our”) and you (if you act in your individual capacity) or the company, organization or other legal entity on behalf of which you act as an authorized representative (in either case, the “Customer”).  This Agreement governs (a) Customer’s access and use of our proprietary Cross Safe Course Materials; and (b) the Learner’s access and use of the Course Materials.

THIS AGREEMENT IS A BINDING CONTRACT BETWEEN CUSTOMER AND OSC.  BY USING THE COURSE MATERIALS OR AUTHORIZING OR PERMITTING ANY LEARNERS TO ACCESS OR USE THE COURSE MATERIALS, CUSTOMER IS LEGALLY BOUND TO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THIS ELECTRONIC AGREEMENT WILL HAVE THE SAME LEGAL FORCE AND EFFECT AS IF IT WERE IN PAPER FORM WITH CUSTOMER’S WRITTEN SIGNATURE.

If you are an individual entering into this Agreement in your individual capacity, you represent to OSC that you are at least 18 years old and have the legal capacity to be bound by this Agreement; if you are an individual entering into this Agreement on behalf of a company, organization, or other legal entity, you represent to OSC that you have the authority to bind such entity to this Agreement.  If the foregoing (as applicable) is not true, or if Customer does not agree with the terms and conditions in this Agreement, Customer must not use nor authorize any use of the Course Materials.

Access to and use of Course Materials may be subject to supplemental terms and conditions unique to such services or features (“Supplemental Terms”).  Supplemental Terms do not replace this Agreement but rather augment the terms and conditions of this Agreement.  Supplemental Terms will be binding only if expressly agreed to by the Customer.  If there is any inconsistency or conflict between the terms of this Agreement (as it may be amended from time to time) and any other agreement regarding Customer’s access to and use of the Course Materials (including Supplemental Terms, a service order, or a purchase order), the terms of such other agreement will control, but only with respect to the subject matter covered by such other agreement.

1.              Introductory Matters

1.1           Key Definitions:  In this Agreement, the following terms have the following meanings and other capitalized terms have the meanings set out elsewhere in this Agreement:

(a)            “Agreement” means this Agreement and the order placed by Customer through OSC’s website located at [www.ottawasafetycouncil.ca] (“OSC’s Website”).

(b)            “Certificate” means a certificate, issued automatically by the Online Course, to the Customer who completes the Online Course (each module in sequence) and achieves a minimum standard of eighty percent (80%) on a [twenty-five (25) question multiple-choice] test presented by the Online Course using the Final Exam module of the Course Materials (each a “Test”).

(c)            “Course Materials” means the proprietary materials for the CROSSSAFE online training course set out in Schedule “A”, and any customizations, modifications, updates and upgrades to those materials provided or made available by OSC to Customer pursuant to this Agreement.

(d)            “IP Rights” means all IP Rights (including copyright and related rights, moral rights, patents, inventions [whether patentable or not], database rights, design rights, and rights in respect of trademarks and domain names and related goodwill, trade secrets and confidential information) of any nature and kind whatsoever, whether or not registered or registrable, and all applications, registrations, renewals, extensions, continuations, divisions, reissues and restorations relating to any of those rights (where applicable), now or hereafter in force and effect throughout all or any part of the world.

(e)            “Learner” means a specific named individual (natural person) who registers with Smarter U Platform to take the Online Course, for whom Customer has purchased a License and to whom a Registration Key has been issued.

(f)             “License” means a valid and subsisting license to use the Course Materials granted by OSC to Customer pursuant to this Agreement as set out in section 2.1 of this Agreement and the applicable invoice issued by OSC (for single or multiple leaners as applicable).

(g)            “Online Course” means a version of the CROSSSAFE online training course purchased by Customer and made accessible to Customer through the SmarterU Platform.

(h)            “Registration Key” means the software registration key issued to Customer by or through the SmarterU Platform for the purpose of accessing the Course Materials through the SmarterU Platform.

(i)              “Representatives” means, with respect to a person, all of the person’s directors, officers, employees, contract workers, consultants, advisors, agents, and other personnel and representatives, licensors, suppliers, subcontractors and service providers. For greater certainty, and notwithstanding the foregoing in this section 1.1(h), Customer’s Representatives do not include any Learner.

(j)              “SmarterU Platform” means the online platform through which OSC makes the Course Materials and the Online Course available to Customer.

1.2           Interpretation:  In this Agreement: (a) “this Agreement” refers to this Agreement as a whole (including Schedule “A”), and not just to the particular provision in which those words appear; (b) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c) words importing the singular number include the plural, and vice versa; (d) reference to a day, month, quarter or year means a calendar day, calendar month, calendar quarter or calendar year, unless expressly stated otherwise; (e) reference to currency is to the lawful money of Canada, unless expressly stated otherwise; (f) “discretion” or “option” means a person’s sole, absolute and unfettered discretion or option, as applicable; (g) “including” or “includes” means including or includes (as applicable) without limitation or restriction; (h) “in writing”, “written” or similar terms includes email, unless expressly stated otherwise; (i) “law” includes common law, civil law, equity, statutes and regulations, and a reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (j) “person” includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity.

2.              Course Materials

2.1           Grant of License: Subject to the provisions of this Agreement and Customer’s timely payment of all applicable fees and charges, OSC hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, restricted and limited right to (a) access and use, and allow such number of Learners as permitted pursuant to the purchase of multiple Licenses in bulk, to access and use the Course Materials made available through the SmarterU Platform; and (b) allow, where applicable, Learners to access and use the Course Materials through the allocation of one Registration Key per Learner, solely to the extent necessary to complete the Online Course once (“License” or “Licenses”, where Customer purchases multiple licenses in bulk). There are no implied rights or licenses granted to Customer under this Agreement or any other agreement concerning the Course Materials.

2.2           Restrictions/Requirements – Course Materials:  Except as otherwise permitted under this Agreement, including any Supplemental Terms, Customer will not and will not permit or encourage others, directly or indirectly, to: (a) use, disclose, distribute, make available or provide or permit access to or use of any Course Materials except as expressly permitted by this Agreement; (b) copy, reproduce, translate, change, customize, modify, or enhance any Course Materials; (c) create derivative works (including any other software or materials) from any Course Materials or merge, embed or combine any Course Materials with any other software or materials; (d) share any Credentials required to obtain a Registration Key or Registration Key(s) issued with any other person; (e) make any changes, modifications, additions or improvements to any Course Materials; (f)  license, sublicense, grant, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, create any interest in, otherwise give or make available or permit the use of any Course Materials by any other person, or use any Course Materials for the benefit of any other person; (g) alter, attempt to circumvent, destroy, obscure or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, technological protection measures, digital rights management tools or rights management information, security or control measures or agreements on, in or in relation to any Course Materials; or (h) permit, assist or encourage any other person to do any of the foregoing in this section 2.2 or use any Course Materials in a way that would constitute a breach of this Agreement if done by Customer. Customer will use commercially reasonable efforts to protect all Course Materials to which Customer has access against unauthorized access, copying, distribution or use. A restriction set out in this section 2.2 does not apply if and to the extent the restriction is prohibited by applicable law.

2.3           Modifications:  OSC retains the right to modify the Course Materials during the Term.

2.4           Learners

(a)            No Fee:  Where Customer has purchased multiple Licenses in bulk, Customer will make the Online Course available to Learners free of charge. Customer will not request or receive from or on behalf of any Learner any fee or other compensation for registering for or taking the Online Course and gaining access to and using the Course Materials.

(b)            Account Registration and Disclaimer:  Upon purchasing a License or multiple Licenses (as applicable) Customer shall, and shall cause each Learner to, create an account through the SmarterU Platform for the purpose of enrolling in the Online Course and being issued a Registration Key. Use of the SmarterU Platform and the creation of an account through the SmarterU Platform may be subject to the terms and conditions of access and use, and policies of SmarterU. OSC shall have no responsibility for the SmarterU terms and conditions and policies or the SmarterU Platform, including, without limitation, its operation, Customer’s ability to access and use the SmarterU Platform, or any material made available through the SmarterU Platform that may be misleading, incomplete, erroneous, offensive or otherwise objectionable. Customer is solely responsible for complying with the terms of access and use, and policies of the SmarterU Platform. OSC is not responsible or liable for any loss or damage of any kind incurred by Customer or any other person (including any Learner) as a result of Customer’s access and use of the SmarterU Platform. Customer understands and agrees that access to and use of the SmarterU Platform is at Customer’s own risk.

2.5           Technical Requirements:  To access and use the Course Materials, Customer is responsible, at its own expense, for obtaining Internet access and any applicable hardware, software, and data communications services required to connect to the SmarterU Platform.  Customer acknowledges that a high-speed Internet connection may be required. Customer is also responsible for procuring and maintaining the network infrastructure and communications services it needs to access and use the Course Materials, and maintaining updated browser, operating system, and other software that enable secure access to the Course Materials. OSC is not responsible for any Customer or third-party software and hardware, or for any compromise of any data, including Customer Data, transmitted using the SmarterU Platform. Except as expressly set out in this Agreement, Customer is solely responsible and liable, at its own expense, for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment, software and services necessary for accessing the Online Course and using the Course Materials.

2.6           Bulk Purchase:  Where Customer has purchased multiple Licenses in bulk, Customer acknowledges and agrees that Customer is fully responsible and liable for all acts, omissions and liabilities by or on behalf of each Learner and their access to and use of the SmarterU Platform and the Course Materials, and compliance by each Learner with the terms and conditions for access and use, and policies, of the SmarterU Platform. Customer will ensure that each Learner fully complies with all of the requirements, restrictions and limitations set out in this Agreement regarding the use of Course Materials and compliance with the terms and conditions, and policies of the SmarterU Platform.

2.7           Delivery of Course Materials:  OSC will cause Course Materials to be made accessible to Customer further to (a) the purchase by Customer of a License(s) (as applicable); (b) the creation of an account and enrollment by Customer (and by each Learner to whom a Registration Key is issued by Customer in the case of Licenses in bulk purchased by Customer) in the Online Course through the SmarterU Platform; and (c) the issuance to Customer by the SmarterU Platform of a Registration Key(s) (as applicable). OSC will not deliver copies of Course Materials on tangible media to Customer.

3.              Customer Data

3.1           Customer is solely responsible for all data and information that the Customer and Learners provide to OSC (through the purchase of License(s)) and that Customer and Learners input into the SmarterU Platform (all such data and information, “Customer Data”).  OSC does not guarantee, and Customer is solely responsible for reviewing and assessing, the accuracy, integrity, and quality of Customer Data.  Customer will not do any of the following and will ensure that no Learner does any of the following:  (a) upload or otherwise make available to OSC (including through the SmarterU Platform) any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to OSC (including through the SmarterU Platform) any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation, or other obligation; (c) use, upload, or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to OSC (including through the SmarterU Platform) any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; or (e) violate any applicable law, rule, or regulation.  Customer will keep its Customer Data current, accurate, and complete. Customer acknowledges and understands that OSC may rely on Customer Data to send notices and other information to Customer via email, solely to provide information to Customer relating to the Course Materials, Customer’s access and use of Course Materials and the completion of the Online Course by Customer (including Learners).

4.              Fees/Charges and Payments

4.1           Fees/Charges:  In consideration of the provision of the Course Materials, Customer will pay OSC the fees pursuant to the License(s) purchased by Customer through OSC’s Website and/or this Agreement (“Fees”). Except as may be expressly stated in this Agreement, all fees due hereunder must be paid in advance, payment obligations are non-cancelable once incurred (subject to any cancellation and refund rights set forth in this Agreement), and fees paid are non-refundable.

4.2           Payment Method: All fees due hereunder will be paid by credit card, or, if agreed to in writing by OSC, through automated clearing house (“ACH”) transfers (each such payment method and related information provided by Customer, a “Payment Method”). By providing a Payment Method, Customer authorizes each of OSC and the third-party payment processor(s), such as Stripe, Inc., that we engage to process payments in connection with the License(s) (“Payment Processor”) to charge, or collect via, that Payment Method the applicable fees (including Fees) and Taxes (as defined below).  Fees and Taxes will be charged to, or collected via, Customer’s Payment Method on the date Customer places an order to purchase a License(s) through OSC’s Website. Without limiting any cancellation and refund rights set forth in this Agreement, Fees are fully earned upon payment. We may authorize Customer’s Payment Method in anticipation of License-related charges through various methods.

4.3           Payment Processor: OSC is not a payments processor, intermediary, or payment agent.  The Payment Processor is acting solely as a billing and processing agent for and on behalf of OSC.  OSC will not be construed to be providing payment or other financial services, and the Payment Processor will not be construed as providing the Course Materials or access to them.  OSC or Payment Processor will attempt to verify Customer’s Payment Method(s), and may do so by processing an authorization hold, which is standard practice.  To the extent Payment Processor processes payments made by Customer, Customer will be subject to terms and conditions governing the use of Payment Processor’s service, including, without limitation, Stripe, Inc.’s Services Agreement applicable to Customer (available at https://stripe.com/legal/ssa).  Please review such terms and conditions as well as Payment Processor’s privacy notice (each of which is available on Payment Processor’s website).  Customer acknowledges and understands that Payment Processor may collect and retain a portion of the fees Customer pays to OSC whenever Customer pays such fees.  We do not view or store Customer’s full credit card or other Payment Method information.  If any of Customer’s account, order, or Payment Method information changes, Customer will promptly update such information, so that we or Payment Processor may complete Customer’s transaction(s) and/or contact Customer, as needed.

4.4           Payment Representations and Warranties: Customer represents and warrants that:  (a) the account and order information and the Payment Method Customer supplies to us and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (b) Customer is duly authorized to use the Payment Method(s); (c) Customer will pay any and all charges incurred by users of Customer’s Payment Method(s) in connection with the License(s) and Customers access to and use of the Course Materials, including any applicable fees (at the prices in effect when such charges are incurred) and Taxes; (d) charges incurred by Customer will be honored by the Payment Method’s company; (e) Customer will not allow or enable anyone else to access or use the Course Materials except to the extent such person has been issued a Registration Key; and (f) Customer will report to us any unauthorized or prohibited access to or use of any Registration Keys or OSC’s Course Materials.

4.5           Disclaimer: We disclaim any and all liability with respect to, and Customer understands and acknowledges that we are not responsible for: (a) any security or privacy breaches related to Customer’s credit card or other Payment Method, (b) any fees that may be charged to Customer by Customer’s bank in connection with the collection of fees in connection with the License(s) and/or access to and use of Course Materials, and/or (c) any unauthorized use of Customer’s Payment Method by a third party.

4.6           Taxes: All amounts due hereunder are exclusive of all sales, use, excise, service, value added, and/or other taxes, duties, and charges of any kind (whether foreign, federal, state, local, or other) associated with this Agreement, the License(s), or Customer’s access to and use of the Course Materials (collectively, “Taxes”).  Customer agrees to pay any and all applicable direct and indirect Taxes associated with its transactions hereunder that OSC is legally required to collect and that OSC itemizes on OSC’s invoice(s).  If OSC has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer will reimburse OSC for such amounts. Customer must timely provide OSC with any valid tax exemption certificates authorized by the appropriate taxing authority.

4.7           Cancellation: Customer may at any time or elect not to access or use the Course Materials during the Term. We may, subject to the terms hereof, with or without prior notice, cancel, suspend, or terminate (or request the cancellation, suspension or termination) of Customer’s access to Course Materials, permanently terminate or temporarily suspend Customer’s access to Customer’s user account require to access the SmarterU Platform, or stop providing access to Course Materials (or any portion thereof) without liability, at any time, in our sole discretion, including if:

• Customer (or any Learner to whom Customer has issued a Registration Key) materially breaches this Agreement, and such breach is not remedied within 30 days of notice of the breach from OSC;
• such action is necessary to comply with law or protect the security or integrity of the services provided by the Third Party service provider (including, without limitation, SmarterU); or
• continued use would expose OSC to legal liability.

CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, UNLESS REQUIRED BY APPLICABLE LAW, CUSTOMER WILL NOT BE ENTITLED TO RECEIVE ANY REFUND OR CREDIT FOR ANY SUCH DE-ACTIVATION, CANCELLATION, SUSPENSION, OR TERMINATION, NOR FOR ANY UNUSED REGISTRTION KEYS, ANY PRE-PAYMENTS MADE IN CONNECTION WITH CUSTOMER’S PURCAHSE OF LICENSES, ANY CONTENT OR DATA ASSOCIATED WITH CUSTOMER’S USER ACCOUNT (OR THE USER ACCOUNT OF A LEARNER TO WHOM CUSTOMER HAS ISSUED A REGISTRATION KEY), OR ANYTHING ELSE, AND THAT ANY SUCH REFUNDS OR CREDITS MAY BE GRANTED AT OUR SOLE OPTION AND IN OUR SOLE DISCRETION.  If Customer believes Customer has been improperly charged and would like to request a refund, please contact us at [CrossSafe@ottawasafetycouncil.ca].

5.              Proprietary Rights

5.1           Course Materials:  As between the Parties, OSC and its licensors will at all times solely own and retain all rights, title and interests (including all IP Rights) throughout the world in, to and associated with all Course Materials. The Course Materials are licensed, not sold, to Customer. Customer will not acquire any right, title or interest (including any IP Rights) in, to or associated with any Course Materials pursuant to this Agreement or otherwise.

5.2           Feedback:  If Customer (including any Learners) or Customer’s Representatives provide to OSC or any of OSC’s Representatives any feedback (including ideas or suggestions for enhancements or improvements) about any Course Materials, Customer hereby grants, on behalf of itself and the applicable Learners, to OSC a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to implement, modify, commercially exploit, incorporate into the Course Materials, and otherwise use (including on a non-confidential basis) any such Feedback in any manner OSC chooses.  OSC has the right to seek intellectual property protection for any modifications to Course Materials that may be based on Feedback in its own name.  All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.

5.3           Trademarks:  CROSSSAFE, OSC and other related marks are registered or unregistered trademarks of OSC or its licensors. Except as otherwise agreed by the Parties, Customer does not have and will not acquire any license or right to use any of those trademarks

5.4           Reservation of Rights:  All rights not expressly granted by a Party under this Agreement are reserved to the Party.

5.5           Customer Data: OSC acknowledges and agrees that, as between Customer and OSC, all rights, title, and interest in and to the Customer Data are and will remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title, or interest in or to the Customer Data other than as set forth in this Agreement or in any Supplemental Terms.  As between the parties, Customer and its licensors retain all rights (including any and all intellectual property rights), title, and interest in and to the Customer Data, except as set forth in this Agreement or in any Supplemental Terms. Subject to the terms of this Agreement, Customer hereby grants to OSC a worldwide, irrevocable, transferable, sub-licensable (through multiple layers), assignable, non-exclusive, fully paid-up, royalty-free–and, with respect to clause (b) hereof only, perpetual–right to use, reproduce, copy, store, manipulate, modify, distribute, publish, list information regarding, make derivative works of and publicly perform and display the Customer Data (a) during the Term in connection with providing access to and use of the Course Materials, and performing all related obligations owed to Customer under this Agreement, or as may be required by law; and (b) during the Term and thereafter, to perform such other actions as described herein or as otherwise authorized by Customer in connection with Customer’s use of the Course Materials.

6.              Other Matters

6.1           Customer’s Representatives:  Customer is fully responsible and liable for all acts, omissions and liabilities by or on behalf of each of Customer’s Representatives (including all of Customer’s Learners) and their access to and use of Course Materials. Customer will ensure that each of Customer’s Representatives and each of Customer’s Learners fully complies with all of the restrictions, requirements and limitations set out or referenced in this Agreement regarding the use of Course Materials.

6.2           Legal Compliance:  Customer will comply and ensure that all use by or on behalf of Customer (including by Customer’s Learners) of Course Materials, complies with all applicable laws.

6.3           Records/Reports:  During the term of this Agreement and for five (5) years thereafter, Customer will create and maintain complete and accurate records in accordance with generally accepted accounting principles applied on a consistent basis concerning the Registration Key(s) (as applicable) issued to Customer and, in the case of multiple Licenses, the Customer’s Learners to whom Registration Keys have been issued. On a quarterly basis during the term of this Agreement and at any other time on request by OSC during or after the term of this Agreement, Customer will promptly deliver (by email) to OSC an electronic report setting out the names of each Customer’s Learner to whom a Registration Key was issued by Customer and/or SmarterU through the SmarterU Platform as part of a multiple License purchase by Customer, for the purpose of ensuring that only those to whom a Registration Key has been issued have had access to the Online Course and the Course Materials.

6.4           Confidentiality:  All non-public information regarding Course Materials (collectively “Confidential Information”) is the confidential proprietary information of OSC and is owned solely by OSC and its licensors. Customer will: (a) use Confidential Information only during the term of this Agreement and only to the extent necessary to perform Customer’s obligations or exercise Customer’s rights under this Agreement; (b) disclose Confidential Information only to Customer’s Representatives who have a legitimate need to know Confidential Information and only to the extent that the disclosure is necessary to perform Customer’s obligations or exercise Customer’s rights under this Agreement; (c) not disclose or make Confidential Information available to any other person in any manner or form without OSC’s express prior written consent, except for bona fide disclosures required by applicable law made by Customer after reasonable prior notice to OSC; (d) both during and indefinitely after the term of this Agreement protect the confidentiality of Confidential Information using the same degree of care as Customer affords to its own confidential information of a similar nature that Customer desires not to be used or disclosed, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of Confidential Information; and (e) ensure that each person to whom Customer discloses Confidential Information complies with the restrictions and requirements set out in items (a), (b), (c) and (d) in this section 6.4. On expiration or termination of this Agreement, Customer will either deliver to OSC or securely, permanently delete and destroy all paper and electronic documents and other records containing Confidential Information in Customer’s possession, power or control.

7.              Warranties and Disclaimer

7.1           Representations/Warranties:  Each party hereby represents and warrants to the other party that:  (a) if such party is a company, organization, or other entity, such entity is duly organized, validly existing, and in good standing in its jurisdiction of organization; (b) such party’s execution, delivery, and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such party is an individual, such party has the legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such party, enforceable against such party in accordance with their terms, subject to bankruptcy, insolvency, and other laws affecting creditors’ rights generally; (d) its execution, delivery, and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any agreement or other obligation to which such party is subject; and (e) it has all rights and permissions necessary to fully perform its obligations hereunder.

7.2           General Disclaimer:  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE COURSE MATERIALS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, OSC MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE COURSE MATERIALS (WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) OF NONINFRINGEMENT, (C) THAT THE COURSE MATERIALS WILL MEET CUSTOMER’S (OR ANY LEARNER’S OR OTHER THIRD PARTY’S) REQUIREMENTS, WILL ALWAYS BE AVAILABLE AND ACCESSIBLE, WILL BE UNINTERRUPTED, TIMELY, OR SECURE, OR WILL OPERATE WITHOUT ERROR, (D) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COURSE MATERIALS, OR (E) AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE COURSE MATERIALS.

7.3           Disclaimer for Third Party Services:  CUSTOMER ACKNOWLEDGES THAT THE COURSE MATERIALS ARE MADE ACCESSIBLE AND HOSTED BY A THIRD-PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD-PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, AND WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES THAT PROVIDE ACCESS TO THE COURSE MATERIALS.  ADDITIONALLY, OSC USES THIRD PARTIES TO PROCESS PAYMENTS AND TO PROVIDE OTHER SERVICES THAT AUGMENT THE SERVICES THROUGH WHICH THE COURSE MATERIALS ARE MADE AVAILABLE (ALL SUCH THIRD PARTIES, INCLUDING THE HOSTING CONTRACTOR AND PAYMENT PROCESSOR(S), “THIRD-PARTY SERVICE PROVIDERS”).  OSC MAY REPLACE ANY OR ALL OF THE THIRD-PARTY SERVICE PROVIDERS AT ANY TIME.  THE USE OF THE SERVICES PROVIDED BY THIRD-PARTY SERVICE PROVIDERS IS SUBJECT TO ANY RESTRICTIONS, TERMS, AND CONDITIONS IMPOSED BY SUCH THIRD-PARTY SERVICE PROVIDERS.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OSC WILL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS, OR ERRORS WITH ACCESS TO OR USE OF THE COURSE MATERIALS TO THE EXTENT CAUSED BY A THIRD-PARTY SERVICE PROVIDER.  CUSTOMER EXPRESSLY RELIEVES US FROM ANY AND ALL LIABILITY ARISING FROM CUSTOMER’S OR ANY LEARNER’S ACCESS TO AND/OR USE OF ANY ASPECT OF THE SERVICES PROVIDED BY A THIRD-PARTY SERVICE PROVIDER.  CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE COURSE MATERIALS REFLECT THE FACT THAT OSC IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE THIRD-PARTY SERVICE PROVIDERS.

8.              Limitations of Liability Exclusions/Limitations

8.1           Limitation:  TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE BY CUSTOMER TO OSC UNDER THIS AGREEMENT.

8.2           Disclaimer:  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA OR PROFITS) ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.

8.3           Exceptions: NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS IN SECTIONS 8.1 AND 8.2 ABOVE WILL NOT APPLY TO LIABILITY ARISING FROM: (A) A PARTY’S WILLFUL MISCONDUCT; (B) INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (C) WITH RESPECT TO LIABILITY ARISING FROM AN UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER DATA IN BREACH OF THIS AGREEMENT, SUPPLEMENTAL TERMS OR THE DATA PROCESSING AGREEMENT, IN WHICH CASE OF CLAUSE (C) EACH PARTY’S LIABILITY TO EACH OTHER WILL BE TWICE THE AMOUNT SET OUT IN SECTION 8.1 OF THIS AGREEMENT.

9.              Indemnification

9.1           OSC Indemnification: OSC will indemnify, defend and hold Customer from and against any claims, actions, proceedings, demands, lawsuits, damages, liabilities, and expenses (including reasonable legal fees and court costs) (“Claims”) brought by, or due to, a third party to the extent it is proven in (a final, non-appealable adjudication): (a) that any part of the Course Materials infringes, misappropriates, or otherwise violates such third party’s intellectual property or proprietary right when used as authorized in this Agreement (collectively, “Infringement”); and (b) negligence, fraud, or willful misconduct of OSC.

9.2           Customer Indemnification: Customer will indemnify, defend, and hold OSC and OSC’s subcontractors (including SmarterU), and each of its and their officers, directors, employees, consultants, and subcontractors (singularly or collectively, “OSC Parties”) harmless against any Claims brought against, or suffered or incurred by, the OSC Parties arising out of or in connection with any:  (a) use of the Course Materials by Customer or Learners in breach of this Agreement; (b) negligence, fraud, or willful misconduct of Customer or any Learner to whom a Registration Key is issued by Customer; (c) failure or alleged failure by Customer to comply with any obligation, warranty, or representation under this Agreement; (d) breach of applicable law by Customer and/or any Learner to whom a Registration Key is issued by Customer; and (e) a third party’s allegation that any materials provided, directly or indirectly, by Customer (including, without limitation, Customer Data) to OSC or OSC’s subcontractors (including SmarterU) infringes, misappropriates, or violates the rights of a third party, including any rights of privacy, confidentiality, or intellectual property of that third party.

9.3           Indemnification Process: The party to be indemnified (the “Indemnitee”) will: (a) provide the indemnifying party (the “Indemnitor”) notice of the Claim as soon as practical; provided, however, that the failure to give such notice shall relieve the Indemnitor of its obligations under Section 9.1 or Section 9.2 (as applicable) solely to the extent the Indemnitor is prejudiced thereby; (b) give the Indemnitor the option to conduct the defense of the Claim, including negotiations for settlement or compromise before the institution of legal proceedings; provided, however, that no Claims may be settled, compromised, or otherwise disposed of by the Indemnitor without the express prior written consent of the Indemnitee; and (c) provide the Indemnitor with reasonable assistance in conducting the defense of the Claim.

9.4           Exclusions: OSC’s obligations in Section 9.1 above will not apply to any Claim to the extent arising from or relating to:  (a) use of the Course Materials other than strictly in accordance with this Agreement and any Supplemental Terms; (b) any modification, alteration, or conversion of the Course Materials not created or approved in writing by OSC; or (c) any Customer Data used by OSC in accordance with this Agreement.

9.5           Exclusive Remedy for Infringement Claims: If a portion of the Course Materials is or may be subject to a claim of Infringement, OSC may, at its cost and sole discretion:  (a) obtain the right for Customer to continue using the Course Materials as contemplated herein; (b) replace or modify the Course Materials (or any item thereof) so that it becomes non-Infringing; or (c) to the extent the foregoing are not commercially reasonable, stop making available the Course Materials and return to Customer any pre-paid fees for the Licenses that could not be used due to the Infringement (if any).  OSC’s obligations in Section 9.1 and in this Section 9.5 will be OSC’s sole obligations, and Customer’s sole remedies, in the event of any claim of Infringement.

10.           Term and Termination

10.1         Term:  The term of this Agreement will commence on the date OSC receives payment of Fees by Customer and will continue until Customer has completed the Online Course, unless cancelled earlier in accordance with this Agreement.

10.2         Automatic Termination:  Where Customer has purchased multiple Licenses, unless the Parties expressly agree in writing otherwise, this Agreement will terminate immediately and automatically (without notice by or to either Party) if all Licenses expire or are terminated.

10.3         Temporary Suspension: Without limiting OSC’s rights under this Agreement, OSC may, in its sole discretion and upon notice to Customer, elect to direct the suspension of Customer’s access to Customer’s user account (required to access the SmarterU Platform) and/or Customer’s access to and use of the Course Materials due to Customer’s breach of this Agreement, until the breach has been remedied. OSC will provide written notice to Customer if the suspension is removed. Without limiting OSC’s other rights under this Agreement, OSC may suspend the Customer’s or the Learner’s permission to access and use the Course Materials, and may request the removal of Customer Data and/or other content from the services performed by SmarterU if (a) we reasonably believe that Customer or a Learner to whom Customer has issued a Registration Key has violated this Agreement; or (b) we suspect or detect any malicious activity or software in Customer’s access (or access by Learner to whom Customer has issued a Registration Key) to the Course Materials.  We may also remove Customer Data and/or other content to mitigate the risk of a security incident or to protect the rights or content of others, in each case solely to the extent required to mitigate such risks. Unless we are legally prohibited from doing so, we will use commercially reasonable efforts to notify Customer of such actions via email. We may refer any suspected fraudulent, abusive, or illegal activity by Customer or a Learner to whom Customer has issued a Registration Key, to law enforcement authorities.

10.4         Consequences of Expiration/Termination of Agreement:  Upon the termination or expiration of the Term: (a) all rights granted to Customer hereunder will terminate, and OSC will no longer provide access to the Course Materials to Customer or to any Learner to whom Customer has issued a Registration Key, and (b) Customer will cease accessing and using the Course Materials.  Any obligations that have accrued prior to termination or expiration will survive termination or expiration of this Agreement.

10.5         Survival:  Notwithstanding any other provision of this Agreement, each of sections 1, 2.2, 2.4(b), 2.6, 3, 4.1, 4.4, 4.5, 5, 6, 7, 8, 9, 10.4, 10.5 and 11, and all other provisions necessary to the interpretation or enforcement of those sections, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding on the Parties as applicable

11.           General

11.1         Notices:  Unless this Agreement expressly states otherwise, all notices to be given under this Agreement will be in writing and will be delivered to a Party by hand/courier or email to the Party’s addresses for notice set out above in this Agreement or at other addresses for notice specified by the Party in a notice delivered pursuant to this section 11.1. Each Party will promptly acknowledge in writing receipt of each notice delivered by the other Party in accordance with this section 11.1. A notice delivered by courier will be deemed delivered when it is received. A notice delivered by email will be deemed delivered on the next business day (at the place of delivery) following the date of transmittal and acknowledgement of receipt by the recipient (not an automated acknowledgement). For greater certainty, this section 11.1 does not apply to operational communications regarding the Parties’ day-to-day performance of their obligations under this Agreement.

11.2         Governing Law/Disputes:  This Agreement, the subject matter of this Agreement and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of Ontario, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.  All disputes between the Parties arising from, connected with or relating to this Agreement or its subject matter will be resolved by litigation in the courts of Ontario sitting in Ottawa, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of all of those disputes.

11.3         Assignment:  This Agreement is binding on and will enure to the benefit of the Parties and their respective successors and permitted assigns. Customer will not assign this Agreement without the express prior written consent of OSC. Any purported assignment in breach of this section 11.3 will be void and of no force or effect. OSC may assign this Agreement without the prior consent of Customer. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the parties acknowledge and agree that OSC may assign this Agreement and its rights hereunder, in whole or in part, to any third party.

11.4         Force Majeure:  Notwithstanding any other provision of this Agreement, neither Party will be liable for any delay in performing or failure to perform any of the Party’s obligations, excluding payment obligations, under this Agreement to the extent performance is delayed or prevented due to any cause that is beyond the Party’s reasonable control (including any act of God, fire, flood, earthquake, epidemic, pandemic, act of war or terrorism, sabotage, riot, insurrection or civil disobedience, strike, lock-out or other labour disruption); and any delay or failure of that kind will be deemed not a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

11.5         Miscellaneous:  The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. If a Party’s consent, approval or agreement is required under this Agreement, then the Party in its discretion and for its sole convenience may withhold or refuse the consent, approval or agreement unless this Agreement expressly states otherwise. No consent or waiver by a Party to or of a breach of this Agreement by the other Party will be effective unless in writing and signed by both Parties, or deemed or construed to be a consent to or waiver of a continuing breach of this Agreement or any other breach of this Agreement by the other Party. Except as expressly set out in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which the Party may be entitled under this Agreement or applicable law, and each Party is entitled to pursue all of the Party’s rights and remedies concurrently, consecutively and alternatively. Each Party represents that the individual signing this Agreement on behalf of the Party has been properly authorized and empowered by the Party to accept and sign this Agreement on behalf of the Party.

11.6         Entire Agreement/Amendment:  This Agreement (along with the documents relating to the purchase of the License(s) as applicable) sets out the complete agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between the Parties with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties with respect to the subject matter of this Agreement other than as expressly set out in this Agreement. This Agreement may not be amended except by a written document that expressly states that it is an amendment to this Agreement and is signed by both Parties or their respective successors or permitted assigns.