This
Agreement was last updated on May 29, 2020.
This
Master Services Agreement (“Agreement”) governs the access and
use of Gurukol for Business and Gurukol for Government.
Definitions. As used in this
Agreement, the following terms have the meaning set forth below.
“Affiliate” means any entity
that directly or indirectly controls, is controlled by, or is under common
control with the subject entity.
“Customer” means the party
entering into an Order Form with Gurukol, or otherwise signing up to use the
Services.
“Courses” means the online
courses provided by Gurukol as part of the Services.
The “Fees” means
the amounts payable by Customer to Gurukol for access to the Services.
“Order Form” means the ordering
document mutually executed by Gurukol and Customer, including electronic orders
submitted by Customers purchasing the Team Plan version of the Services,
specifying: (1) the Fees payable by Customer to Gurukol for provision of the
Services, (2) the duration of the Services to be provided by Gurukol to
Customer, (3) the number of Users authorized to access the Services, and (4)
other billing and payment information regarding Gurukol’s provision of the
Services to Customer.
“Personal Data” means any personal
data that Customer submits into the Services.
The “Services” means
Gurukol for Business or Gurukol for Government, a platform for online education
provided by Gurukol that includes the Courses.
“Gurukol” means Gurukol, LLC.,
or one of its affiliates.
“Users” means the subscribers,
employees and contractors that Customer authorizes to access and use the
Services.
Provision
of the Services.
Gurukol agrees to make the Services available to Customer and its Users
pursuant to the terms of this Agreement, and as specified in an Order Form. In
the event that Customer is purchasing a subscription to the “Team Plan” version
of the Services, then Customer acknowledges and agrees that certain features
generally available in the Services may not be available to Customer.
Restrictions. Customer shall not, nor
shall it permit its Users to:
Copy, distribute, create derivative works,
hack, or modify the Services or any of the Courses,
Input any inappropriate, infringing,
offensive, racist, hateful, sexist, pornographic, defamatory or libelous
content into the Services,
Scrape, spider, or utilize other automated
means of any kind to access the Services, including but not limited to
accessing API endpoints for which Customer or its Users have not been provided
authorization by Gurukol,
Use the Services for benchmarking or any
other similar competitive purposes, or in order to build a competitive product
to the Services,
Share login access to the Services among
multiple individuals, transfer a User license (except in connection with a
change of job assignment or termination of employment), or otherwise permit any
party other than the Users to use the Services,
Use or access the Services in a U.S.
embargoed country or in violation of any U.S. export law or regulation, or
allow any individual that is on a U.S. government denied-party list to use the
Services,
Introduce any computer code, file, or
program that may damage the Services,
Use the Services in any manner that is
unlawful or that infringes the rights of others, or
Permit any individual that is under the age
of 13 years old to use the Services.
Violations
of Restrictions.
In the event that Gurukol determines that Customer or any of its Users has
violated the restrictions set forth in Section 3 above, Gurukol reserves the
right to terminate or suspend access to the Services for Customer or the
relevant Users.
Fees. Customer will pay the
Fees as set forth in one or more Order Forms. Unless stated otherwise in an
Order Form, all fees are payable in US dollars. In the event that Customer is
late in making payments, then Gurukol reserves the right to charge the greater
of 1.5% interest per month or the maximum interest permitted by law, and
Customer will be liable for all third-party collection costs.
Taxes. The Fees and other
amounts required to be paid hereunder do not include any amount for taxes,
including any applicable sales, use, excise, or other transaction-based tax
("Taxes") or levy (including interest and penalties). Customer agrees
to pay all amounts payable under this Agreement free and clear of all
deductions or withholdings or rights of counter claim or set-off, unless required
by law. If a deduction or withholding is so required, then Customer agrees to
pay such additional amount as to ensure that the net amount received and
retained by Gurukol equals the full amount that Gurukol would have received had
the deduction or withholding not been required. Customer shall reimburse Gurukol
and hold Gurukol harmless for Taxes or levies to which Gurukol is required to
collect or remit to applicable tax authorities. This provision does not apply
to Gurukol's income, franchise and employment taxes or any taxes for which
Customer is exempt provided Customer has furnished Gurukol with a valid tax
exemption certificate. To the extent a taxing authority changes their position
or taxing policy requiring Gurukol to collect a Tax or levy from Customer, Gurukol
will add the Tax or levy to the Customer invoice.
Confidentiality.
Scope of Confidentiality. Each party agrees that
all code, inventions, know-how, or business, technical, and financial
information disclosed to such party (“Receiving Party”) by the
disclosing party (“Disclosing Party”), constitute the
confidential information of the Disclosing Party (“Confidential
Information”), provided that it is either identified as confidential at
the time of disclosure, or should be reasonably known by the Receiving Party to
be confidential due to the nature of the information disclosed. Personal Data
is considered Confidential Information. Confidential Information will not,
however, include any information that: (1) was publicly known and made
generally available in the public domain prior to the time of disclosure by the
Disclosing Party, (2) becomes publicly known and made generally available after
disclosure by the Disclosing Party to the Receiving Party through no action or
inaction of the Receiving Party, (3) is already in the possession of the
Receiving Party at the time of disclosure by the Discloser, (4) is obtained by
the Receiving Party from a third party without a known breach of the third
party’s obligations of confidentiality, or (5) is independently developed by
the Receiving Party without use of or reference to the Confidential
Information. The Receiving Party may disclose the Disclosing Party’s
Confidential Information if required by law so long as the Receiving Party
gives the Disclosing Party prompt written notice of the requirement prior to
the disclosure and assistance in obtaining an order protecting the information
from public disclosure.
Non-Use and
Non-Disclosure.
Except as expressly authorized herein or as necessary to perform its obligations
hereunder, the Receiving Party agrees to: (1) not disclose any Confidential
Information to third parties, and (2) not use Confidential Information for any
purpose other than as necessary to exercise its rights or perform its
obligations hereunder.
Processing of Personal
Data.
Notwithstanding the provisions of this section, Customer agrees that Gurukol
may process Personal Data as necessary for: (1) storage and other processing
necessary to provide, maintain, and update the Services, and (2) the provision
of customer and technical support to Customer regarding the Services. To the
extent that Customer is subject to a local data privacy law (including but not
limited to the General Data Protection Regulation or the California Consumer
Privacy Act), then Customer agrees to request from Gurukol a data protection
agreement prior to providing any Personal Data to Gurukol.
Term
and Termination.
Duration of Term. This Agreement will
commence on the Effective Date, and will continue until all Order Forms
hereunder have expired or have been terminated. The duration of the Services
will be specified in each applicable Order Form. Unless otherwise specified in
an applicable Order Form, and with the exception of Customers on the Gurukol
for Business Team plan that have disabled auto-renewal within the Services,
Order Forms will renew automatically for additional terms of one year, unless
terminated by either party by giving at least 30 days written notice prior to
the end of the then-current term.
Termination for Material
Breach.
Either party may terminate this Agreement and any applicable Order Forms in the
event that the other party materially breaches this Agreement, by providing 30
days written notice, unless such breach is cured during such 30-day notice
period. In the event that Customer terminates this Agreement or any Order Form
due to material breach by Gurukol, then Customer will be entitled to receive a
pro-rated refund for Services not rendered past the termination date. Sections
5-11 and 15-18, as well as any accrued rights to payment, will survive any
termination or expiration of the Agreement.
WARRANTY
DISCLAIMER.
EXCEPT AS OTHERWISE AGREED UPON BY THE PARTIES, GURUKOL PROVIDES THE SERVICES
AS-IS AND DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICE, EXPRESS, OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES RELATING TO
MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
OR AVAILABILITY.
Limitation
of Liabilities.
NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT OR RELATED TERMS AND CONDITIONS UNDER ANY THEORY OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR: (1) ANY INDIRECT,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (2) ANY AMOUNTS IN EXCESS OF
THE FEES PAID OR PAYABLE BY CUSTOMER TO GURUKOL IN THE 12 MONTHS PRIOR TO THE
DATE THE RELEVANT CLAIM AROSE.
Indemnification.
Gurukol's Indemnification
Obligations.
Gurukol agrees to defend Customer for all third-party claims arising from an
allegation that Customer’s use of the Services as permitted under this
Agreement infringes upon a third party’s intellectual property rights (“Claim
Against Customer”), and indemnify Customer from any damages, reasonable
attorney fees, and costs incurred by Customer as a result of a Claim Against
Customer. In the event that the Services become subject to a third-party
intellectual property claim, or Gurukol believes that the Services will become
subject to such a claim, then Gurukol may elect to: (1) modify the Services so
that they are no longer allegedly infringing, (2) obtain a license for
Customer’s continued use of the Services, or (3) terminate this Agreement or any
applicable Order Forms, and provide Customer a pro-rated refund for Services
not rendered past the termination date. This section states Gurukol’s sole
liability to the Customer with respect to a claim that any part of the Services
infringes the intellectual property rights of a third party.
Customer's
Indemnification Obligations. Customer agrees to defend Gurukol for all third-party
claims arising from Customer’s violations of Sections 3(a) and 3(b) of this
Agreement (“Claim Against Gurukol”), and indemnify Gurukol from
any damages, reasonable attorney fees, and costs incurred by Gurukol as a
result of a Claim Against Gurukol.
Requirements for
Indemnification.
In order for the indemnification obligations hereunder to apply, the party
seeking indemnification must: (1) promptly tender a claim for indemnification,
(2) allow the indemnifying party sole control of the defense or settlement of
the underlying claim, and (3) reasonably assist with any defense or settlement
of the underlying claim at the indemnifying party’s request and expense.
Anti-Corruption. Neither party has
received or been offered any illegal or improper bribe, kickback, payment,
gift, or thing of value from an employee or agent of the other party in
connection with this Agreement. Reasonable gifts and entertainment provided in
the ordinary course of business do not violate the above restriction. Upon
learning of any violation of this restriction, Customer agrees to promptly
notify Gurukol’s legal department, by emailing info@Gurukol.com.
Publicity. Customer grants Gurukol
the right to use Customer’s company name and logo as a reference for marketing
or promotional purposes on Gurukol’s website and in other promotional
materials.
Force
Majeure.
Neither party will be liable for any failure or delay in the performance of its
obligations hereunder to the extent caused by a condition that is beyond a
party’s reasonable control, including but not limited to natural disaster,
civil disturbance, acts of terrorism or war, labor conditions, failure by a
third party hosting provider or utility provider, governmental actions,
interruption or failure of the Internet or any utility service, or denial of
service attacks.
Assignment. Neither this Agreement
nor any of the rights and licenses granted under this Agreement may be transferred
or assigned by either party without the other party’s express written consent
(not to be unreasonably withheld or delayed), except, however, that either
party may assign this Agreement and all Order Forms under this Agreement
without the other party’s consent to an Affiliate or to its successor in
interest in connection with a merger, acquisition, corporate reorganization, or
sale of all or substantially all of its assets. Any other attempt to transfer
or assign this Agreement will be null and void. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties, their respective
successors, and permitted assigns.
Severability. If any provision of
this Agreement is held by a court of competent jurisdiction to be contrary to
law, the provision shall be deemed null and void, and the remaining provisions
of this Agreement shall remain in effect.
Governing
Law Venue, and Attorney’s Fees. This Agreement and any disputes arising
under it will be governed by the laws of the State of Commonwealth of Virginia,
USA without regard to its conflict of laws provisions, and each party consents
to the personal jurisdiction and venue of the state or federal courts located
in Fairfax, Virginia. In the event of any dispute between the parties regarding
the terms of this Agreement, the party prevailing in such dispute shall be
entitled to collect from the other party all costs incurred in such dispute,
including reasonable attorneys’ fees.
Entire
Agreement.
This Agreement constitutes the entire agreement between the parties pertaining
to the subject matter hereof, and any and all written or oral agreements
previously existing between the parties are expressly cancelled. This Agreement
and any mutually executed Order Forms shall apply in lieu of the terms or
conditions in any purchase order or other documentation that Customer provides,
and all such terms and conditions are null and void and superseded by this
Agreement and any mutually executed Order Forms. This Agreement, or any part thereof,
may be modified by Gurukol at any time, including the addition or deletion of
terms at any time, and such modifications, additions or deletions will be
effective immediately upon posting.
Contracting
Party, Governing Law, and Currency for Indian Customers. As of June 1, 2020, if
Customer is located in India, then Customer is contracting with First eCouncil
Guru LLP under this Agreement. In such case, notwithstanding Section 17 above,
this Agreement and any disputes arising under it will be governed by the laws
of India, and both parties consent to the exclusive jurisdiction and venue of
courts in Delhi, India for all disputes arising out of this Agreement. In
addition, if Customer is located in India, notwithstanding Section 17 above,
then any dispute, claim, or any non-payment (any of which shall be treated as a
dispute) whether present or future, whatsoever between the parties under,
arising out of, relating to or in connection with this Agreement shall be
settled by mandatory arbitration in accordance with the provisions of the
Arbitration and Conciliation Act, 1996 by a sole arbitrator mutually appointed
by the parties and both parties consent to such mandatory arbitration. Either
party may serve the other party with a notice in writing specifying the
existence and nature of the dispute and the intention to refer the dispute to
arbitration. If the parties are unable to agree on a sole arbitrator within 30
days of such notice, each Party shall appoint an arbitrator, and the
arbitrators so appointed shall jointly appoint the third arbitrator. The award
determined through arbitration shall be final and binding. The venue of such
arbitration shall be in Delhi. The proceedings shall be conducted in English.
Notwithstanding Section 5 above, if Customer is located in India, then all fees
payable by Customer will be in Indian Rupees.
