1. Independent Contractor
The relationship between Global Knowledge Network (Canada) Inc. ("Global") and Customer is that of independent contractors and nothing shall be construed as creating an employment, agency, or representative relationship. Global shall be obligated to pay any and all applicable state, federal, and employment taxes applicable to Global, its employees, agents, and/or subcontractors. Neither party shall be considered an agent of the other party for any purpose whatsoever, and shall not represent itself as such to anyone. Neither party shall have the right to, and shall not, commit the other party to any agreement, contract, or undertaking.
Global shall submit invoices to Customer for the Base Course Fee approximately two weeks prior to the course start date. Any additional fees will be invoiced upon completion of the course. Customer shall make payment within thirty (30) days receipt of invoices. Any taxes or duties due in the fulfillment of this Agreement shall be paid by Customer.
3. Intellectual Property Rights
Customer shall acquire no rights to the intellectual property embodied within Course Materials, defined as those materials that are delivered to students or otherwise used in the presentation of courses which are generally available to Global's other customers. Course Materials include, without limitation and by way of example only, textbooks, manuals, handouts, templates, software, and outlines. Each Customer student who attends a Global course ("Student") shall receive a copy of, or access to, the applicable Course Materials for that course. Nothing in this Section is intended to restrict a Student from using general underlying methodologies, techniques, or know-how learned in the course of receiving training from Global.
Each party agrees to maintain at its own expense, insurance that it reasonably believes to be adequate to cover its potential liability under this Training Agreement. Furthermore, each party shall defend, indemnify, and hold harmless the other party against any suit, claim, or proceeding (collectively "Claims") brought by a third party for direct damages due to bodily injury (including death) or damage to tangible property which allegedly result from the negligence or willful misconduct of the indemnifying party during the performance of this Agreement, provided however, that this obligation to indemnify shall apply only to amounts exceeding the coverage provided pursuant to a party's insurance policy.
5. Intellectual Property Infringement Indemnity
Global, at its own expense, shall indemnify, defend and hold harmless Customer, its subsidiaries, affiliates or assignees, and its and their directors, board members, officers, employees, agents and shareholders against any action brought against the same with respect to any claim, demand, cause of action, debt or liability, (including reasonable attorney's fees and costs) to the extent based on a claim that any of the Services or Course Materials provided pursuant to this Agreement infringe, violates or misappropriates any patents, copyrights, trade secrets, licenses, or other intellectual property rights of any third party. Customer shall promptly provide Global with written notice of any claim that Customer believes falls within the scope of this Section 5. Customer may, at its own expense, assist in such defense if it so chooses, provided that, Global shall control such defense and all negotiations relative to the settlement of any such claim. Notwithstanding the foregoing, Global shall have no liability for any claim, suit, action or proceeding alleging copyright infringement to the extent that such claim, suit, action or proceeding results from any modification or attempted modification of the Services or Course Materials by Customer without Global's authorization, or the use of the Services or Course Materials in any manner not authorized by Global. In these excepted cases, Customer shall defend indemnify and hold harmless Global, its subsidiaries, affiliates, or assignees, and its and their directors, board members, officers, employees, agents, and shareholders from and against any loss, cost, expense, damage, settlement or other liability, including, but not limited to, reasonable attorneys' fees, which may be incurred with respect to any suit, action, claim, or proceeding related to any exception described in this Section 5.
6. Limitations on Indemnification and Liability
Notwithstanding anything to the contrary in this Agreement and regardless of whether any remedy herein fails of its essential purpose, under no circumstances and under no theory of liability shall either party be liable to or through the other for lost profits, lost savings, loss of information, loss of business opportunity or data, or any other economic losses, or any special, indirect, consequential or incidental damages, however caused, arising in any way out of any performance or failure to perform under this Agreement.
Global represents and warrants that Global, its employees, agents and/or subcontractors, if any, at all times during the performance of their respective duties under this Agreement, shall adhere to the ethical practices, and standards of care and competence that commensurate with industry-wide standards and that all Services provided shall be performed in a professional, competent and workmanlike manner. If Services provided by Global hereunder fail to comply with the applicable specifications, Global will, at its sole option, re-perform, replace or modify the non-conforming Services so that the Services substantially comply with the applicable specifications and are no longer non-conforming. Global's sole obligation and Customer's exclusive remedy under the warranty provisions of this Section 7 shall be limited to re-performance, modification or replacement of the defective Services, provided that if Global is unable to re-perform, modify, or replace the non-conforming Services as required hereinabove, Global shall refund to Customer any pre-payments allocable to the non-conforming Services. Global agrees that these warranties shall survive acceptance of the training courses by Customer. The warranties shall inure to the benefit of Customer, its successors and permitted assigns. Customer represents and warrants that Customer, its employees, agents, and/or subcontractors, shall not provide Global with any personally identifiable information pertaining to Customer's employees, customers, affiliates, or otherwise, without first obtaining consent of such individuals. THE WARRANTIES, OBLIGATIONS AND CONDITIONS SET FORTH IN THIS SECTION 7 CONSTITUTE THE ONLY WARRANTIES, OBLIGATIONS OR CONDITIONS OF GLOBAL WITH RESPECT TO THE SERVICES. FURTHERMORE, THE REMEDIES SET FORTH IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE REMEDIES IN THE EVENT SUCH WARRANTIES OR CONDITIONS ARE BREACHED BY GLOBAL. THE WARRANTIES AND CONDITIONS UNDER THIS SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Compliance With Laws
Each party shall, in its conduct of business and all of its other obligations pursuant to this Agreement, comply with all applicable federal, state, and local statutes, rules of law, ordinances, regulations, and regulatory orders.
9. Governing Law
This Agreement shall be enforced and construed in accordance with the laws of the Province of Ontario, Canada. Each party consents to the exclusive jurisdiction and venue of the Province of Ontario in any action on a claim arising out of, under or in connection with this Agreement.
If any part of this Agreement is declared invalid or unenforceable, the remaining provisions shall continue in effect and be enforceable to the extent permitted by law.
This Agreement and the rights, duties, and obligations hereunder may not be assigned or delegated by either party without the prior written consent of the other party. Notwithstanding the foregoing, such consent shall not be required if either party assigns this Agreement in connection with a merger or acquisition of substantially all of the party's assets, so long as it is to a non-competitor of the other party.
The provisions of this Agreement which by their sense and context are reasonably intended to survive the completion, expiration, or cancellation of this Agreement shall so survive.
13. Force Majeure
Neither party shall be deemed in default of this Agreement to the extent that performance of the party's respective obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, act of government, or any other cause beyond the reasonable control of such party, provided that such party gives the other party written notice of the condition within ten (10) business days of discovery.
This Agreement constitutes the entire agreement of the parties and supersedes all prior and contemporaneous written or oral agreements, understanding, and negotiations between the parties for the performance of Services, with the exception of any prior confidentiality agreements which may exist between the parties. This Agreement is intended by the parties as the final written expression of their agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. Any terms on Customer's product schedule, purchase order, or other ordering document shall have no force or effect, and Global's subsequent performance of Services, or provision of products, shall not constitute acceptance of such terms. Certain products, services, and materials ordered by Customer hereunder may contain additional terms and conditions which are applicable solely in regards to those products and services. In the event Customer rejects such terms and conditions, Customer may receive a refund of any prepaid amounts for such rejected products or services provided Customer promptly communicates its rejection and returns any applicable materials associated with the rejected products or services to Global. No waiver, change, supplementation or modification of any of the terms of this Agreement shall be binding on either party unless it is made in writing and signed by an authorized representative of each party.
15. Customer Virtual Platform Use
With regard to virtual training, if Customer requests to have a private training class delivered on its internal synchronous learning platform or otherwise wishes to host the delivery or content, it is Customer's responsibility to provide adequate licenses, event set-up, technical support, and also basic training/instructions for Global's instructor. In all cases, Customer is prohibited from loading Global training content into the platform. Due to intellectual property restrictions, Customer is prohibited from recording the training event(s) via the platform. Enrolled students are not to share access to the training event(s) with others; the training event(s) and access to any recordings provided by Global shall be solely for the individual student's use. Global has the right to audit the daily student roster to validate student attendance. Customer acknowledges that certain class functionality and desired student learning experience may not be supported via the Customer platform, and agrees to not hold Global responsible for any issues arising from such.
Revised August 2016