These terms and conditions apply to the provision by ActiveLearning, Inc. with its principal place of business located at 2nd Floor Home Studio Building, 63 Connecticut St. Greenhills, San Juan (“ActiveLearning”), of services to any person or entity (“Customer”) which has purchased ActiveLearning training services described herein (“Services”) pursuant to an ActiveLearning enrollment form executed by Customer (“Enrollment Form”) and any associated services attachment to the Enrollment Form (“Services Attachment”). No Enrollment Form shall be deemed binding upon ActiveLearning unless accepted by ActiveLearning, as indicated by ActiveLearning executing such Enrollment Form (such executed and accepted Enrollment Form (including the Services Attachment), together with these terms and conditions, this “Agreement”).
1. SERVICES. Customer may purchase Services from ActiveLearning by completing an Enrollment Form and any related Services Attachment that is governed by the terms and conditions of this Agreement. ActiveLearning agrees to use commercially reasonable efforts to perform such Services in accordance with this Attachment. Services are only for Customer’s internal use and Customer may not use the Services to supply any consulting, support or training services to any third party. The Services shall be performed by persons (“Trainers”) who in the reasonable judgment of ActiveLearning are appropriately qualified to perform such Services.
2. PAYMENT AND TAXES. Customer agrees to pay ActiveLearning the fees stated on the Enrollment Form/Signed Quotation. In addition, Customer agrees to reimburse ActiveLearning for any reasonable travel and lodging expenses incurred by ActiveLearning personnel in providing the Services. Customer will pay all or other tax or duty, and all government permit, withholding or license fees, and custom or similar fees, levied upon the delivery or use of Services described in this Agreement. Unless otherwise specified on an Order Form, all invoices will be paid in Philippine Pesos and are due upon agreed payment terms. If Customer does not pay the invoices when due, ActiveLearning will charge interest at one percent (1.5%) per month on the unpaid balance.
3. CUSTOMER’S OBLIGATIONS. Customer will supply facilities and equipment (including refreshments) for on-site courses with one fully operational workstation per student, unless otherwise stated on the Services Attachment. Customer shall not change the venue for a course to another venue more than ten kilometers away without giving ActiveLearning fourteen (14) days prior written notice, nor without ActiveLearning’s prior written consent (not to be unreasonably withheld or delayed), failing either of which ActiveLearning shall be entitled to treat the Services as having been cancelled by Customer. Customer shall ensure that all persons booked to receive training: (i) are appropriately qualified to participate; (ii) arrive on time for training and in any event not later than twenty minutes after its scheduled start time; (iii) do not conduct themselves in an anti-social manner that could reasonably be considered contrary to Customer’s applicable employment rules and policies. Trainers shall have the right in their reasonable discretion to exclude from a training session any person in breach of subsections (i)-(iii) of this Section 3.
4. OWNERSHIP; CONFIDENTIAL INFORMATION. Customer acknowledges that it may acquire proprietary information and materials about the business, products, services and programming techniques of ActiveLearning and agrees that all such information and materials acquired are the confidential information of ActiveLearning (“Confidential Information”). Customer agrees to protect and not to disclose or use the Confidential Information except as expressly permitted under the Agreement. ActiveLearning training courses and training materials (“Materials”) and all worldwide intellectual property rights therein, as the same may be amended and/or extended, including the copyright, are wholly owned solely by ActiveLearning, who shall retain all right title and interest in and to all Materials.
Customer shall be entitled to keep and use all Materials provided by ActiveLearning to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to ActiveLearning. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archive purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any Materials will be limited to use by the specific persons to whom the services are provided. All ActiveLearning trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any ActiveLearning trademarks without ActiveLearning’s express written authorization.
5. LIMITED WARRANTY, WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY.
5.1 ActiveLearning warrants that it will perform the Services in a workmanlike manner consistent with generally accepted industry practice. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
5.2 IN NO EVENT WILL ActiveLearning BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFIT, LOSS OF DATA, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE. ActiveLearning’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ENROLLMENT FORMS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO ActiveLearning UNDER THIS AGREEMENT FOR THAT PART OF THE SERVICES GIVING RISE TO LIABILITY.
5.3 Whilst on premises owned, controlled or hired by Customer, Trainer shall conduct himself in accordance with the standard health and safety policies of Customer applicable to its staff generally and shall not do anything exposing Customer to a claim against it under applicable employment law by its staff arising directly out of Trainer’s actions. Subject to the immediately preceding sentence, Customer shall not do nor allow anything to be done by its officers, agents or employees that results in loss or damage to be suffered by the Trainer or which exposes ActiveLearning to a claim against it by Trainer arising directly out of Customer’s actions.
5.4 Nothing in the Agreement shall operate so as to exclude or limit either party’s liability for death or personal injury caused by negligence.
6. THIRD PARTY SOFTWARE. Customer acknowledges that in order for ActiveLearning to provide the Services, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by ActiveLearning (“Third Party Products”). ActiveLearning may provide Customer with links and instructions for obtaining Third Party Products but it is Customer’s responsibility to properly license and install any required Third Party Products from the relevant third party providers. ActiveLearning shall have no liability with respect to any Third Party Products. In the event of a failure by Customer to timely provide Third Party Products as required, ActiveLearning may treat the applicable Order Form and Services Attachment as having been cancelled by Customer.
7. TERM. Unless earlier terminated in accordance with this Section 7, this Agreement will remain in effect until both parties’ obligations are fully discharged. Either party may terminate this Agreement upon written notice to the other party in the event that such other party fails to cure a material breach of this Agreement within thirty (30) days of receiving written notice of such breach. ActiveLearning may terminate this Agreement immediately upon written notice to Customer in the event that Customer fails to timely pay any amounts due hereunder. Upon the expiration or termination of this Agreement, Sections 2, 4, 5, 6, 7, 8, 9 and 10 will survive. If Customer wishes to cancel or reschedule any Services it must provide ActiveLearning with not less than fourteen (14) days written notice thereof and Customer will pay the applicable fees set forth in an Enrollment Form plus any non-refundable Expenses already incurred, provided that subject to the foregoing, ActiveLearning shall work together with Customer to reschedule the Services.
8. PERSONAL DATA. The parties shall comply with all obligations under applicable law as regards the storage, processing, transmission and protection of personal data, and shall not do nor permit to be done on their own behalves anything which breaches the foregoing obligation.
9. NON-SOLICITATION. During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach in any way any of ActiveLearning’s employees or contract staff (“Restricted Persons”) with a view to: (i) Offering such Restricted Persons, employment; or (ii) Soliciting services from them on their own account; or (iii) Encouraging them to provide their services to a third party rather than ActiveLearning; or (iv) Offering to them the opportunity to perform services colourably similar to the Services. In the event of a breach of this Clause 9 resulting in Restricted Persons performing services for Customer (whether as an employee or contract staff), then the Customer shall pay to ActiveLearning by way of liquidated damages (which both parties hereby agree shall be a genuine pre-estimate of loss and not a penalty) a sum equal to 100% of the gross annual compensation (including any benefits in kind, bonus payments, commissions and other emoluments) of the applicable Restricted Person as applied at the date he/she ceased to be employed by/contracted to ActiveLearning.
10. GENERAL. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions hereunder, which such terms are hereby rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of ActiveLearning and Customer and do not create any right in favor of any third party. This Agreement will be governed by and construed in accordance with the laws of the Republic of the Philippines without reference to its conflict of laws principles. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of a court of competent jurisdiction located in Mandaluyong City, Philippines and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. All notices must be in writing and will be effective three (3) days after the date sent.