These OnDemand Learning Terms (“Terms”) govern Customer’s access and use of CA Technologies’s OnDemand Learning Service (“Learning Service”) and Learning Content by Agile Academy. By accessing and using the Learning Service or receiving Learning Content, Customer accepts, without limitation or qualification, these Terms. If Customer does not wish to be bound by these Terms, Customer may not access the Learning Service or use the Learning Content.
1. Definitions. As used in these Terms:
- 1.1. “Customer” means the customer identified in the applicable Order Form.
- 1.2. “Fees” means the fees for the subscription to the Learning Service or license to the Learning Content as set forth in an applicable Order Form or SOW.
- 1.3. "Order Form" means collectively the order documents or statement of work (“SOW”) representing the initial subscription to the Learning Service or license to the Learning Content on a stand-alone basis (and any subsequent modifications to the subscription or license agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of these Terms from time to time. Unless mutually agreed between the parties, Order Forms are non-cancelable and the number of Users in an executed Order Form cannot be decreased prior to the end of the then-current subscription or license term, such term to be specified in the Order Form.
- 1.4. “CA” means CA Technologies, Inc.
- 1.5. “Learning Content” means CA training materials, courses, recorded instruction, tutoring and/or related documentation provided by CA in connection with the Learning Service or on a stand-alone basis in a format determined by CA.
- 1.6. “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to (a) use the Learning Service on behalf of Customer and have been supplied User IDs for this purpose; or (b) use the Learning Content licensed to Customer on a stand-alone basis.
2. Learning Service; Learning Content; restrictions.
2.1. Subscription to the Learning Service. Customers purchasing a subscription to the Learning Service are, subject to these Terms, including, without limitation, the timely payment of Fees, granted a non-sublicensable, non-transferable, non-exclusive right to access and use the Learning Service and Learning Content made available through the Learning Service by the number of Users identified in an Order Form solely for Customer’s internal business purposes and not for resale or to provide services to third parties. Learning Content made available through the Learning Service may be updated or modified by CA at any time without notice. Customers purchasing a subscription to the Learning Service shall receive such updated content at no additional charge during the subscription term.
- 2.1.1 Access and Security Guidelines. Each User will be assigned a unique user identification name and password (“UserID”) for access to and use of the Learning Service. Customer shall be responsible for ensuring the security and confidentiality of its UserIDs. UserIDs may not be shared. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Learning Service, and notify CA promptly of any such unauthorized use.
- 2.1.2 Hyperlinked Material. The Learning Service may contain hyperlinks to other sites on the Internet that are not owned or controlled by CA. CA does not assume any responsibility for any material on such sites, or any other material outside of the Learning Service, which is accessed directly or indirectly by any such hyperlink.
2.2. License to Learning Content. Customers purchasing a license to the Learning Content on a stand-alone basis are, subject to these Terms, including, without limitation, the timely payment of Fees, granted a non-sublicensable, non-transferable, non-exclusive license to use the Learning Content on Customer’s learning management system on a single-instance server by the number of Users identified in an Order form solely for Customer’s internal business purposes and not for resale or to provide services to third parties.
- 2.2.1 Usage Reports. At CA’s request, Customer agrees to provide CA with a written report, which report shall be certified by a corporate officer if so requested by CA, detailing Customer’s usage of the Learning Content, including the number of persons having accessed the Learning Content. If Customer’s usage exceeds the number of Users identified in the applicable Order Form, Customer will promptly pay to CA any amounts owed plus interest as provided in Section 4.
- 2.2.2 No Updates. Customers purchasing a license to the Learning Content on a stand-alone basis shall not be entitled to updates to such content as CA may make from time to time. CA will make such updated Learning Content available to such Customers at CA’s then-current prices. Updated Learning Content licensed by such Customers shall be subject to, and use thereof shall be governed by, these Terms.
- 2.3. Additional Users. Access to the Learning Services and the Learning Content may not be shared with anyone other than a User. If a Customer wishes to add additional Users, Customer will request such additional Users. Upon mutual execution of any such additional Order Form, CA shall make the Learning Service or the Learning Content available to the additional Users subject to these Terms and the executed additional Order Form.
- 2.4. Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, will not attempt, and will cause Users to not and not attempt to: (a) reverse engineer, disassemble or decompile any component of the Learning Service; (b) interfere in any manner with the operation of the Learning Service, the hardware and network used to operate the Learning Service, or the Learning Content; (c) sublicense or transfer any of Customer’s rights under these Terms or otherwise use the Learning Service for the benefit of a third party or to operate a service bureau; (d) modify, copy, delete or make derivative works based on any part of the Learning Service or Learning Content; (e) remove, alter or obscure any proprietary rights notice of CA or its suppliers in the Learning Service or in the Learning Content; (f) harass or interfere with another CA customer’s use and enjoyment of the Learning Service. or (g) otherwise use the Learning Service and the Learning Content in any manner that exceeds the scope of use permitted under Section 2.1 hereof.
- 2.5. Compliance with Laws. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Learning Service and the Learning Content.
3. Fees, Payment and Suspension of Services. As consideration for the subscription to the Learning Service and the license to the Learning Content, Customer will pay CA the Fees, which will be billed in advance and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the Order Form. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. Customer shall reimburse CA for all expenses (including reasonable attorneys’ fees) incurred by CA to collect any amount that is not paid when due. All Fees owed by Customer in connection with the Learning Service and the Learning Content are exclusive of, and Customer shall pay, all sales, use, excise and other taxes assessed upon, withheld or incurred in connection with the Learning Service, the Learning Content or the transactions contemplated by these Terms. CA reserves the right (in addition to any other rights or remedies CA may have) to discontinue the Learning Service, suspend all UserIDs and Customer’s access to the Learning Service and suspend Customer’s license to use the Learning Content if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4. Ownership. Customer acknowledges that, as between CA and Customer, CA retains all right, title and interest in and to (a) the Learning Service; (b) the Learning Content; (c) all enhancements, modifications, improvements and derivative works of each and any of the foregoing; and (d) all copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to each and any of the foregoing (collectively (a)-(d), the “CA Technology”), and that the CA Technology is protected by intellectual property rights owned by or licensed to CA . Other than as expressly set forth in these Terms, no license or other rights in the CA Technology are granted to the Customer, and all such rights are hereby expressly reserved by CA. CA shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Learning Service and/or Learning Content any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Learning Service and/or Learning Content.
5. Term and Termination. The term of each subscription for the Learning Service and, as applicable, the term of each license to the Learning Content, will commence on the effective date set forth in the applicable Order Form and terminate as set forth therein. CA may terminate Customer’s subscription to use the Learning Service or license to the Learning Content immediately without notice for any breach by Customer of these Terms. CA may discontinue offering any Learning Content at any time. The rights and duties of the parties under Sections 3.2 and 4 through 9 will survive the termination or expiration of Customer’s subscription and/or license.
6. Warranty Disclaimer. The Learning Service, the Learning Content, and all other data, materials, and documentation provided by CA and its suppliers are provided “as is” and “as available,” without representations or warranties of any kind. CA and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of noninfringement, merchantability or fitness for a particular purpose or any implied warranties arising out of course of performance, course of dealing or usage of trade. CA does not warrant that the Learning Service or the Learning Content will be provided error-free, uninterrupted, completely secure, or virus-free.
7. Limitation of Liability. Each Party’s total cumulative liability to the other party for any and all claims (under any legal theory including claims in contract or tort) arising from or in connection with The Learning Service and the Learning Content will not exceed the amounts actually paid to CA by Customer in the twelve (12) month period immediately preceding the Customer’s formal written notice of the claim for liability hereunder. All claims that a party may have against the other party will be aggregated to satisfy this limit and multiple claims will not enlarge this limit. In no event will a party be liable for special, incidental, indirect or consequential damages arising out of or in connection with the Learning Service or Learning Content (under any legal theory including claims in contract or tort), including, but not limited to, interrupted communications, lost data or lost profits, and damages that result from inconvenience, delay or loss of use of any information or data or of the Learning Service or Learning Content, even if such party has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein. The foregoing limitations of liability shall not apply to (i) Customer’s payment obligations hereunder, (ii) Customer’s Breaches of Section 2 (Learning Service; Learning Content; Restrictions) or (ii) Breaches of Section 4 (Ownership).
- 8.1. Publicity. Customer agrees to allow CA to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of CA and a user of the Learning Service or Learning Content; provided, however, that CA will cease identifying Customer upon request.
- 8.2. Successors and Assigns. These Terms shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
- 8.3. Governing Law and Venue. These Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Any action or proceeding arising from or relating to these Terms or Customer’s use of the Learning Service or the Learning Content must be brought in a federal or state court sitting in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under these Terms results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
- 8.4. Force Majeure. CA will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond CA's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications failures or delays, computer failures involving hardware or software not within CA's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
- 8.5. Entire Agreement. These Terms, along with related Order Forms, constitute the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
- 8.6. Severability and Waiver. In the event that any provision of these Terms is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- 8.7. Relationship of the Parties. The parties are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms.