1. Application: These Online Training Terms of Service (“TOS”) apply to the online training services offered by knoell USA, LLC ("knoell"), a Delaware corporation to be provided to the client identified as the online account holder (“Client”). knoell does not accept any terms incorporated by Client that are in addition to, contrary to or deviate from these TOS. By establishing an account and clicking “Accept” on these TOS, Client agrees that its use of the Training Portal and any Training Products will be governed by these TOS.
2. Certain Definitions. As used herein, (i) “Services” means the online training services to be supplied by knoell to Client including, without limitation, the permitted uses of the Training Products selected by Client; and (ii) “Intellectual Property” means discoveries, innovations, inventions, works of authorship and the copyrights therein, design rights, trademarks, patents, trade secrets and know-how, including, without limitation, the Training Portal and all Training Products, each as defined below.
3. Fees: Client shall be responsible for payment of the fees identified on the payment page. Client's obligation to pay fees is absolute and unconditional and once Client has indicated its course selections and clicked “Checkout”, the fees will be non-refundable. Fees will not be subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever.
4. Taxes: Client will pay all applicable federal, state and local sales, use and excise taxes, and all similar taxes, attributable to Client’s use of the Services.
5. Intellectual Property: knoell owns all Intellectual Property rights in the Training Portal and the Training Products and in no case are Training Products considered works made for hire. Client’s right to use the Training Portal and Training Products is subject to the following license. Client has purchased the right to access knoell’s proprietary training portal (the “Training Portal”) and the Training Products selected by Client. “Training Products” include the following:
(i) Video recordings (“Video Content”)
(ii) Supplementary written materials (“Training Materials”).
Client’s user login will permit access to the selected Training Products upon completion of the online payment transaction, for the period of time specified in the Training Portal. Subject to these TOS, knoell grants to Client, and Client accepts, a limited right and license to access the Training Products via the knoell Training Portal. Client shall not modify, edit, or abbreviate the Training Products in any way. The Video Content shall, at all times, remain on knoell’s server, and Client shall not copy the Video Content onto its own server, nor make any recordings of the Video Content. Client may download copies of the Training Materials for Client’s own internal use, but may not further distribute them. Client shall not sublicense, assign, or transfer the rights granted herein without the prior written consent of knoell. Client covenants that it shall not: (i) decompile, disassemble, reverse engineer or otherwise attempt to derive code from the Training Portal, in whole or in part, nor will Client use any mechanical, electronic, or other method to decompile, disassemble, or identify the source code of the Training Portal or encourage others to do so; (ii) modify, or create derivative works of, the Training Portal or any Training Product; or (iii) use the Training Portal or any Training Product to provide services to any third parties; (iv) interfere with or disrupt the integrity or performance of the Training Portal or the Training Products contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks. Any violation of any of the foregoing covenants or any other obligation under these TOS by Client or anyone accessing the Training Portal using Client’s account shall result in immediate termination of the licenses granted herein.
6. Indemnification: Client hereby agrees to indemnify, protect, and hold harmless knoell and its agents, employees, assigns, officers, directors and shareholders from any claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney’s fees, howsoever caused, (the “Liabilities”), arising out of or related to (i) the acts or omissions of Client, its Authorized Users, or any end user accessing the Training Portal using Client’s account; or (ii) the development, marketing, manufacture, sale or use by Client of any substances or products which are the subject matter of the Training Products. The indemnified Liabilities include those occurring directly to knoell, those arising from claims or actions by governmental agencies and those arising from claims or actions by other third parties.
7. Limitation of Liability: knoell’s total liability to Client for any and all liabilities, claims or damages, howsoever caused and regardless of the legal theory asserted, shall not, in the aggregate, exceed the amount actually paid to knoell in connection with the online transaction to which these TOS relate. In no event shall either knoell or Client be liable to the other for any special, indirect, incidental or consequential damages, lost profits, lost business opportunities, loss of use or equipment down time, and loss of or corruption of data, regardless of the legal theory under which such damages are sought, and even if the parties have been advised of the possibility of such damages or loss. Any claim by Client against knoell must be made in writing and be presented to knoell within one year after the purchase of the Services by Client. The parties acknowledge that the Services to be provided by knoell could not be made available under these TOS without an increase in cost if knoell were required to accept potential liability outside of these limitations, or to provide any representations, warranties or guarantees in addition to or in lieu of those expressly set forth in these TOS.
8. Term and Termination: knoell may terminate Client’s access to the Training Portal and the license granted in Clause 6, above, upon any breach of these TOS by Client including, without limitation, nonpayment. Licensee’s login credentials shall be terminated and Licensee shall cease all use of the Training Products and destroy all downloaded copies of the Training Materials whether in electronic or hard copy format.
9. Quality Statement: knoell represents and warrants that it is the owner of the Training Products and has the right to enter into the transaction with Client to which these TOS relate. This warranty is in lieu of any and all other warranties relating to the Services or Training Products, express or implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose, and knoell explicitly disclaims all other warranties. The sole remedy for breach of this warranty by knoell shall be for knoell to provide non-infringing Training Products, or in the alternative, issue a credit therefor, at knoell’s option.
10. Waiver: No waiver of any provision or condition of the Agreement, whether by conduct or otherwise, shall be construed as a further or continuing waiver of any such provision or condition.
11. Subcontracting: knoell may subcontract part or all of the Services to its affiliates or trusted vendors (“Subcontractors”). knoell will remain responsible to Client for the performance of the Services that it has subcontracted.
12. Force Majeure: Except for the payment of fees due hereunder by Client, neither Client nor knoell shall be liable in any way for failure to perform any provision of these TOS, if such failure is caused by any law, legislative action, court order, or any cause beyond the control of the party in default (such as fire, failure of energy supply, server down time, strike, riot, or acts of God).
13. Non-Publicity: Neither Client nor knoell will use the name of the other or any of their employees for promotional purposes without prior written approval from the other.
14. Independent Contractor: knoell’s relationship to Client shall be that of an independent consultant and not an employee or agent of Client. Nothing contained in these TOS shall create or imply the creation of a partnership between Client and knoell and neither shall have any authority (actual or apparent) to bind the other.
15. Dispute Resolution: Any such dispute that cannot be resolved amicably by third party mediation within 45 days after submission to mediation shall be decided by a single neutral arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted in the English language and shall take place in Delaware County, Pennsylvania, and in no other place. The arbitration shall be conducted in accordance with the procedural laws of the United States Federal Arbitration Act, as amended. The written decision of the arbitrator shall be final and binding, and may be entered and enforced in any court of competent jurisdiction. Each party to the arbitration shall pay its fees and expenses, unless otherwise determined by the arbitrator. Notwithstanding the foregoing, either party may seek preliminary or temporary injunctive or similar equitable relief from a court to protect its confidential information pending the conclusion of mediation and/or final decision of the arbitrator. Any action brought in a court (i) for temporary or preliminary injunctive or equitable relief to protect confidential information or (ii) to challenge or enforce the jurisdiction or award of an arbitrator, shall be brought solely in the state courts located in Delaware County, Pennsylvania or the federal court for the Eastern District of Pennsylvania. knoell and Client hereby accept the exclusive jurisdiction of such courts and agree to submit to the jurisdiction of such courts. In addition, knoell and Client irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue in Delaware County, Pennsylvania or the Eastern District of Pennsylvania and further irrevocably waive any claim that any suit, action or proceeding brought in Delaware County, Pennsylvania or the Eastern District of Pennsylvania was brought in an inconvenient forum. The parties expressly waive their right to trial by jury in any action or proceeding that is in any way related to these TOS, and agree that any such action or proceeding not brought in arbitration shall be tried before a judge and not a jury.
16. Notices: All notices, consents, approvals or requests (“Communications”) to be given under these TOS shall be in writing (including email) and shall be given, if to the Client, at the address or email address associated with the Client account, or if to knoell, to Legal Department (legal@knoell.com), and shall become effective when (i) delivered by hand (or by courier); or (ii) mailed (by registered or certified mail, return receipt requested); or (iii) upon receipt of electronic email. Notwithstanding the foregoing, Communications relating to termination or contract default may not be given by electronic mail.
17. Assignment: The license granted pursuant to these TOS may not be assigned or otherwise transferred by Client except in connection with a merger, consolidation or sale of all or substantially all of its assets.
18. Applicability of Law: These TOS, and the performance or breach thereof, shall be governed by and interpreted as substantive matters in accordance with the applicable laws of the Commonwealth of Pennsylvania, United States of America, without regard to any choice of law principles that would dictate the application of the law of another jurisdiction. The application of the 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these TOS.
19. Entire Agreement: These TOS constitute the entire agreement between Client and knoell with respect to the specific subject matter thereof and supersede any prior agreements and understandings, whether oral or written, between knoell and Client.
20. Amendments: No modification or amendment to these TOS shall be effected by or result from trade custom or course of dealing, or from the receipt, acceptance, signing or acknowledgment of Client purchase orders or other business forms containing terms or conditions in addition to or different from the terms and conditions set forth herein, and these TOS shall supersede any provision in any such document that is in addition to or inconsistent with these terms.
21. Survival: The parties’ obligations under Clauses 5, 6, 7, 8, 9, 10, 15, 16, 18 and 21 shall survive any termination of these TOS.
Vers. 02: April 2019
