Teams Master Subscription Agreement
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This Teams Master Subscription Agreement (this “Agreement”) governs use of the Codecademy Platform (as defined below) offered by Codecademy LLC (“Codecademy”), a New York limited liability company having its principal place of business at 300 Innovative Way, Suite 2210, Nashua, NH 03062.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, USING OR MAKING ANY PAYMENT FOR ANY PRODUCTS, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY PRODUCT.
This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses the Codecademy Platform (the “Effective Date”).
1. DEFINITIONS
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.
“__Admin Tool__” means the checkout link made available to certain customers on the Codecademy Platform.
“__Affiliate__” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity.
“__Codecademy Content__” means Codecademy’s proprietary content in any form (e.g., text, images, audiovisual content, or other types of copyrightable materials) that Codecademy makes available to Customer and its Users via the Codecademy Platform.
“__Codecademy Platform__” means Codecademy’s proprietary, Software-as-a-Service solution, which includes all software that Codecademy develops and maintains in order to provide the Codecademy Platform (including its content management and creation system and program management tools), and all modifications, updates, upgrades, and derivative works to each of the foregoing.
“__Confidential Information__” means any non-public, confidential, or proprietary information or data, whether communicated in writing, orally, or by any other method, and whether or not patentable or copyrightable, that is provided by one party (“Discloser”) to the other party (“Recipient”) under this Agreement and that is (i) marked as “confidential” or “proprietary” by the Discloser at the time of disclosure, or within thirty (30) days after disclosure in written form; or (ii) information which a reasonable person engaged in a similar transaction would consider to be confidential information; further provided that, if such information or data relates to the “Products” as defined below, then such information and data will be “Confidential Information” whether or not it has been marked as “confidential” or “proprietary” by the Discloser. Without limitation, Codecademy’s Confidential Information will include the Products, web site architecture and content, its proprietary technology, or computer software in all versions and forms of expression, manuals, notes, Documentation, technical information, drawings, diagrams, or specifications. Customer’s Confidential Information will include the Customer Data.
“__Customer Data__” means text, images, profile and login information, academic content, data, video, audiovisual content, works of authorship, or other types of materials, or hyperlinks to any of the foregoing, Customer or Customer’s Authorized Users provide, post, upload to, or create on or through the Codecademy Platform.
“__Documentation__” means the written or online documentation regarding the Products made available by Codecademy.
“__Malicious Code__” means any software that transmits a virus, corrupted file, spyware, adware, or any other similar malicious software or program, or deploys “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or the Codecademy Platform and its infrastructure.
“__Order Form__” means any order document agreed to by the parties in writing, to purchase a Subscription to the Products. Certain Teams customers will use an Order Form rather than the Admin Tool.
“__Ordering Instrument__” means the Admin Tool or the Order Form, as applicable to Customer.
“__Products__” means the Codecademy Content, Codecademy Platform and Documentation, and all modifications, updates, upgrades, and derivative works of or to each of the foregoing.
“__Subscription__” has the meaning ascribed to it in Section 2.1.
“__Subscription Term__” means the length of the Subscription set forth in the Codecademy Platform Ordering Instrument.
“__Users__” means individuals or entities that are authorized by Customer to use the Products.
2. ACCESS GRANTS & RESTRICTIONS
2.1 Right to Access the Products. Subject to the terms of this Agreement, Codecademy grants Customer (including each User) a royalty-free, nonexclusive, nontransferable, worldwide right during each Subscription Term to use the Products set forth in the Ordering Instrument, but subject to any limitations, and up to the number of Users, identified therein ( the “__Subscription__”).
2.2 Restrictions. Customer will not, and will not allow any User to: (i) access (or allow a third party to access) the Products in order to monitor the availability, security, performance, or functionality of the Products, or for any other competitive purposes without Codecademy’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit or make the Products available to any third party, except to Users and a third party that manages Customer’s computing environment; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, copy the Codecademy Platform, or any of its components, or otherwise tamper with the Codecademy Platform or any security technology, software, or rights management information; (iv) use the Products to conduct any fraudulent, malicious, or illegal activities; (v) modify or remove any copyright, trademark, or other proprietary rights notice on any Products; (vi) access or use the Products to submit or transmit any Malicious Code or to send any commercial solicitation or spam (whether commercial in nature or not); or (vii) exploit the Products in any unauthorized way whatsoever, including, without limitation, by burdening server or network capacity or Codecademy Platform infrastructure (each of (i) through (vii), a “__Prohibited Use__”).
3. CODECADEMY OBLIGATIONS
3.1 General. Codecademy is responsible for providing the Products in conformance with this Agreement and applicable Documentation. During the Term, the functionality of the Products will not be materially decreased from the functionality available as of the Effective Date; Customer’s sole and exclusive remedy for Codecademy’s breach of this obligation will be for Codecademy to correct such breach.
3.2 Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Codecademy will use commercially reasonable efforts to address the issue.
4. TERM AND TERMINATION
4.1 Term. The term of this Agreement will commence on the Effective Date and will continue for a period of one (1) year (“__Initial Term__”), regardless of whether Customer has any active Subscriptions to the Products. Thereafter this Agreement will automatically renew for successive one-year periods (each, a “__Renewal Term__” and together with the Initial Term, the “__Term__”) unless either party provides notice of its intent not to renew the then-current Term. Customer may provide such notice via the Codecademy Platform.
4.2 Termination for Cause. Either party may terminate this Agreement or any active Subscription for cause: (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
4.3 Effect of Termination. Upon termination or expiration of this Agreement or any change of the licensed Products, Customer will delete any copies of the Products from its computer(s) or server(s) and destroy or return to Codecademy all hard copies of the same. Upon Codecademy’s request, Customer will provide Codecademy with a written statement, signed by an authorized Customer representative, which certifies its compliance with the foregoing obligations. If Codecademy terminates this Agreement pursuant to subsection 4.2(i) or 4.2(ii) above, then Codecademy reserves the right to pursue any and all rights and remedies available to it under applicable law, including, but not limited to, collection of any outstanding fees. If Customer terminates this Agreement pursuant to subsection 4.2(i) above, then Codecademy shall return any amount previously paid by Customer for the period after the effective date of termination, but shall be entitled to receive and retain all amounts attributed to the period before the effective date of termination. Upon termination or expiration of this Agreement, unless otherwise agreed by the parties in writing, Codecademy may delete all Customer Data from the Codecademy Platform.
4.4 Survival. The rights and obligations of the parties which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in effect.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay the fees for the Subscription as set forth in the Ordering Instrument. If applicable, Codecademy will submit an invoice to Customer for the Subscription. Payment will be due within thirty (30) days of the applicable invoice (“__Due Date__”). Customer acknowledges that invoices may be sent by an affiliate of Codecademy (e.g., Skillsoft (US) LLC) and that payment for such invoices shall be made to the applicable Codecademy affiliate.
5.2 Overdue Charges. Customer shall reimburse Codecademy upon demand for all reasonable costs incurred (including attorneys’ fees) in collecting past due amounts owed by Customer, and Codecademy reserves the right to charge interest, of up to the maximum charge permitted under applicable laws, on the past due amounts that are the subject of such collections activities. Prior to charging late fees, Codecademy will contact Customer regarding the delinquency and verify receipt of the applicable invoice. For the avoidance of doubt, Codecademy shall not bring an action to collect any past due fee that is the subject of a good faith dispute between the parties. Customer agrees to provide Codecademy with complete and accurate billing and contact information.
5.3 Taxes. The Commitment Fee and any other amounts payable to Codecademy hereunder are exclusive of taxes. Codecademy shall be responsible for all taxes payable in connection with its provision of the Products to Customer and on its income therefrom. Codecademy shall invoice Customer and Customer shall be responsible for all sales, use, excise, service, or similar taxes payable in connection with its receipt and use of the Products under this Agreement. Notwithstanding the foregoing, prior to Customer’s execution of this Agreement Customer may provide Codecademy with a valid tax exemption certificate or direct pay permit acceptable to the applicable taxing authorities to allow the issuance of invoices to Customer without the applicable tax. In the event that Customer is legally required to withhold income tax from any payments to Codecademy under this Agreement, Codecademy shall provide Customer with a valid tax residency certification as required under any double taxation treaty then in effect to reduce or eliminate the income tax to be withheld from these payments. Customer shall withhold tax at the applicable rate in effect as of the date of payment and shall provide to Codecademy on a timely basis documentation evidencing payment of the tax withheld to the applicable tax authority.
5.4 Authorized User Fee Modifications. Codecademy may, in its sole discretion, increase or otherwise modify the fees for each Renewal Term by providing Customer notice of changes to the fees at least ninety (90) days prior to the end of the then-current term. If Customer does not agree to the new or changed fees, Customer may exercise its right not to renew the Agreement as set forth in Section 4.1.
5.5 Renewal Fees. If Customer purchases a Subscription with automatic renewal, Customer authorizes Codecademy to use any payment information on file for the renewal fee. Unless otherwise cancelled pursuant to Section 4.1 or otherwise agreed by the parties, the Subscription will renew annually on the same day of the month or year, respectively, as the date of the initial purchase and the payment information on file will be billed for the then-current subscription fee. This purchase date will be included on Customer’s subscription confirmation receipt that will be emailed to the address provided.
5.6 Credit Card Payments. Unless otherwise agreed by the parties, Customer must provide Codecademy with a valid credit card for payment of Subscriptions. Codecademy uses a third party payment (“__Payment Processor__”) for the purposes of processing all credit card transactions related to the Products. Any and all such data collected and processed by the Payment Processor will be done so in accordance with Payment Processor’s terms of use, privacy policy, and applicable law. Any and all data collected and processed by Codecademy related to the Products will be done so in accordance with Codecademy’s Privacy Policy, which is attached hereto as Exhibit A.
6. CONFIDENTIALITY
6.1 Non-Disclosure Obligation. All Confidential Information will be maintained in confidence by the Recipient using at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, and will not be disclosed to a third party or used for any purposes except as set forth in this Agreement. The obligations described in this Section 6.1 will not apply to any Confidential Information that:
a. is known by the Recipient at the time of receipt, and not through a prior disclosure by the Discloser, as documented by the Recipient’s business records; b. is known to the public before its receipt from the Discloser, or thereafter becomes known to the public through no breach of this Agreement by the Recipient; c. is subsequently disclosed to the Recipient by a third party who is not under an obligation of confidentiality to the Discloser; or d. is developed by the Recipient independently of Confidential Information received from the Discloser, as documented by the Recipient’s business records.
6.2 Certain Permitted Disclosures. Notwithstanding the obligations of confidentiality and non-use set forth in Section 6.1, the Recipient may use and disclose Confidential Information as may be reasonably required by it in order for the Recipient to perform its obligations and to exercise its rights under this Agreement. The Recipient may disclose Confidential Information: (a) to its employees, directors, agents, consultants, advisors, or other third parties for the performance of its obligations and exercise of its rights hereunder, provided such entities are under an obligation of confidentiality with respect to such information that is no less stringent than those of this Section 6; and (b) to the extent necessary to comply with a court order, or as otherwise required by law or by a regulatory agency or government body, provided that the Recipient shall first give notice to the Discloser (so long as such notice is not prohibited by law) and assist the Discloser, at the Discloser’s expense, to block such disclosure and/or obtain a protective order to protect the confidentiality of such information. If the Recipient is nevertheless required to make such disclosure, the Recipient agrees to disclose only that portion of the Confidential Information that it is legally required to disclose, provided, however, the Recipient shall continue to be bound by the confidentiality and non-use provisions of Section 6.1 with respect to any Confidential Information disclosed by the Recipient pursuant to this Section 6.2. The Recipient shall immediately notify the Discloser of any actual or suspected unauthorized disclosure of Confidential Information.
6.3 Injunctive Relief. The parties agree that a breach or threatened breach of this Section 6 would result in irreparable harm to the non-breaching party, which breach would be inadequately compensated by money damages. Accordingly, the non-breaching party may, in addition to any other legal remedies that may be available, seek injunctive relief, including without limitation preliminary injunctive relief, prohibiting or enjoining any such actual or threatened breach of this Section 6. The parties agree that the non-breaching party will not be required to post a bond in seeking such injunctive relief.
7. DATA PROTECTION
7.1 Customer Data. In connection with its use of the Products, Customer may transfer Customer Data to Codecademy. Codecademy will use Customer Data exclusively for the purpose of providing the Products to Customer, and Customer grants Codecademy a limited license during the Subscription Term to use Customer Data to do so. Codecademy will process any such Customer Data in accordance with Codecademy’s Privacy Policy (located here: https://www.codecademy.com/policy). For the avoidance of doubt, nothing in this Agreement shall prevent Codecademy during and after the Term from collecting, analyzing, using, and disclosing any data in an anonymized and/or aggregated form, including data derived from the Customer Data, for the limited purpose of developing, maintaining, and enhancing the Codecademy Service.
7.2 Security. Codecademy maintains physical, technical, and administrative safeguards in line with industry standard best practices in order to protect Customer Data.
8. OWNERSHIP
8.1 Codecademy Property. Codecademy owns and retains all right, title, and interest in and to the Products. Except for the limited access rights granted to Customer in Section 2.1, Codecademy does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Codecademy’s intellectual property rights in the Products.
8.2 Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data, and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Codecademy, except for the limited license set forth in Section 7.1.
8.3 Feedback. Customer may provide comments, suggestions, and recommendations to Codecademy with respect to the Products (including, without limitation, comments, suggestions, and recommendations with respect to modifications, enhancements, improvements, and other changes) (collectively, “__Feedback__”), and Customer hereby assigns to Codecademy all rights in, or arising from, any such Feedback. Codecademy may freely use and exploit Feedback as it deems appropriate in its sole discretion.
9. REPRESENTATIONS AND WARRANTIES
9.1 Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
9.2 Warranties by Codecademy. Codecademy warrants that it will provide the Products in accordance with industry standard practices. During the term of an Ordering Instrument executed under this Agreement the Products will substantially conform to the Documentation. In the event that a material defect is identified and documented by Customer, and confirmed by Codecademy, then Codecademy, at its sole option and expense may: (i) make reasonable efforts to correct defects in the Products; or (ii) replace the defective Products; or (iii) if Codecademy deems neither of the foregoing are commercially practicable, terminate the license granted herein with respect to the applicable Products, accept return of the defective Products in accordance with Section 4.4 and grant Customer a pro-rated credit of the unused portion of the license fees paid with respect the applicable Products. The remedy stated in this Section 9.2 shall be Codecademy’s entire obligation and Customer’s sole and exclusive remedy for breach of warranty hereunder and shall be in lieu of any other remedy available to Customer at law or in equity. This warranty shall not apply if the Product(s) have been (a) altered, modified, or enhanced by any party other than Codecademy; (b) subjected to misuse, negligence, or computer or electrical malfunction; or (c) used, adjusted, installed, or operated other than in accordance with the Documentation, or as authorized in writing by Codecademy. Furthermore, no warranties shall apply while there is an uncured breach of this Agreement by Customer for which notice of breach has been given by Codecademy hereunder.
9.3 Customer Content. Notwithstanding the provisions in Section 9.2 above, in no event shall Codecademy provide any warranties or technical support to Customer for (i) any Customer-provided courses or other property, information, software, documentation, or materials provided to Codecademy by Customer or that Codecademy hosts on, or provides via, any Products as requested by Customer for Customer’s use (collectively, “__Customer Content__”); or (ii) third party content licensed by Customer from such third party and accessed from the Codecademy Platform via an API or other linking tool (collectively with Customer Content, “__Non-Codecademy Content__”). Codecademy makes no warranties with respect to any such Non-Codecademy Content, and it expressly disclaims all liability for such Non-Codecademy Content, including, without limitation, any failure of such Non-Codecademy Content to meet applicable accessibility standards.
9.4 DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED. CODECADEMY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ABSENCE OF SECURITY INTEREST, LIEN, OR ENCUMBRANCE. SPECIFICALLY, AND NOT IN LIMITATION OF THE FOREGOING, CODECADEMY DOES NOT WARRANT THAT ANY OF THE PRODUCT(S) WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE OPERATION OF ANY OF THE PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE PRODUCT(S) CAN BE CORRECTED. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN. ALL OF THE PRODUCTS, AND ANY OTHER MATERIALS OR INFORMATION PROVIDED BY CODECADEMY ARE NOT INTENDED, AND SHOULD NOT BE TAKEN, AS LEGAL ADVICE.
10. INDEMNIFICATION
10.1 By Codecademy. Codecademy, at its own expense, shall indemnify, defend, and hold Customer harmless from and against all claims, damages or other liabilities asserted by, or payable to, a third party that a Product infringe(s) a patent, copyright, trademark, or trade secret of said third party in the Territory (each, a “__Product Claim__”). In order to seek or receive indemnification pursuant to the provisions of this Section 10.1, (i) Codecademy shall be notified promptly in writing by Customer of any Product Claim of which it is aware for which indemnification may be available; (ii) Codecademy shall have the sole control of the defense of any such Product Claim and of all negotiations for its settlement or compromise, provided that such settlement or compromise does not require the admission of liability, fault, or wrongful act or conduct on the part of Customer; and (iii) Customer shall cooperate reasonably with Codecademy in the defense, settlement, or compromise of such Product Claim at Codecademy ‘s expense. Codecademy will not be responsible for the expenses, including attorney’s fees, of Customer incurred after Codecademy assumes defense of a Product Claim, but Customer may participate therein and retain counsel at its own expense. Codecademy will not be responsible for any settlement or compromise made by Customer without Codecademy’s prior written consent. Codecademy will not consent to the entry of any judgment or enter into any settlement or compromise affecting Customer, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Customer, and/or otherwise involves more than the payment of money by Codecademy, without the prior written consent of Customer.
10.2 Remedies. If Customer’s use of any Product is enjoined, or if in Codecademy’s sole judgment is likely to be enjoined, Codecademy may, at its sole option and expense, and as a complete remedy to Customer, either (a) substitute equivalent non-infringing software for the infringing item; (b) modify the infringing item so that it no longer infringes but remains functionally equivalent; (c) obtain for Customer the right to continue using such item; or (d) if Codecademy deems none of the foregoing are commercially practicable, terminate the license granted herein with respect to the applicable Product(s), accept return of the infringing Product(s), and grant Customer a pro-rated credit of the unused portion of the Commitment Fee paid with respect the applicable Product(s)
10.3 Exclusions. The foregoing provisions of this Section 10 notwithstanding, Codecademy shall not have any liability to Customer under this Section 10 to the extent that any infringement or claim thereof is based upon (i) Non-Codecademy Content; (ii) use of the applicable Product(s) in combination with any equipment or software not supplied hereunder where the Product(s) would not otherwise be infringing; (iii) compliance with designs, plans, or specifications provided by Customer; (iv) use of any Product in an application or environment for which it was not designed, not provided for in the Documentation, or not contemplated under this Agreement; (v) use of other than the most recent release of the Product(s) provided to Customer by Codecademy; (vi) use of the Product(s) in breach of this Agreement; and/or (vii) any claims of infringement in which Customer or any Affiliate of Customer has an interest or license in the property allegedly infringed upon by the applicable Product(s).
10.4 By Customer. Customer shall indemnify, defend, and hold Codecademy harmless from and against all claims, damages, or other liabilities asserted by or payable to a third party arising out of or in connection with any Customer Content (each, a “__Customer Content Claim__”). In order to seek or receive indemnification pursuant to the provisions of this Section 10.4 (i) Codecademy will promptly notify Customer in writing after receiving notice of any Customer Content Claim; (ii) Customer shall have the sole control of the defense of any action on such Customer Content Claim and all negotiations for its settlement or compromise; and (iii) Codecademy shall cooperate reasonably with Customer in the defense, settlement, or compromise of such Customer Content Claim at Customer’s expense. Customer will not be responsible for the expenses, including attorney’s fees, of Codecademy incurred after Customer assumes defense of a Customer Content Claim, but Codecademy may participate therein and retain counsel at its own expense. Customer will not be responsible for any settlement or compromise of any Customer Content Claim made by Codecademy without Customer’s prior written consent. Customer will not consent to the entry of any judgment or enter into any settlement or compromise affecting Codecademy, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Codecademy, and/or otherwise involves more than the payment of money by Customer, without the prior written consent of Codecademy.
10.5 Mutual Indemnities. Each party hereby agrees to indemnify, defend, and hold harmless the other together with the other’s officers, directors, employees, agents, and Affiliates from and against any and all third party claims, actions, demands, liabilities, penalties, fees, costs, or expenses, including reasonable attorneys’ fees, arising out of or in connection with the indemnifying party’s (i) breach of its obligations set forth in Section 12; or (ii) gross negligence or willful misconduct.
11. LIMITATIONS OF LIABILITY
11.1 Fraud, Death, or Personal Injury. Neither party excludes or limits its liability to the other for fraud, for death or personal injury resulting from its negligence, or for any other liability which cannot be excluded or limited by law.
11.2 Non-Direct Damages. Neither party shall be liable for any consequential, collateral, special, incidental, indirect, exemplary, or punitive damages, including, without limitation, loss of profits or revenue, loss of use, damage, loss or destruction of data, costs of cover, or costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or its subject matter. These limitations will apply even if a party has been informed of the possibility of such damages or any other liability which cannot be excluded or limited by law.
11.3 Total Liability. In no event shall either party’s aggregate liability for any claims arising in a given contract year (whether in contract, tort, or otherwise, and whether arising under this Agreement or arising out of or resulting from Customer’s use of any Product(s)) exceed the fees paid or payable under this Agreement with respect to said contract year.
11.4 Exceptions. The limitations of liability set forth in Sections 11.2 and 11.3 above shall not apply to (i) the parties’ respective indemnification obligations under this Agreement; (ii) damages arising out of or in connection with Customer’s breach of Section 2.2 of this Agreement; or (iii) any damages arising out of or in connection with Customer’s misappropriation of Codecademy’s intellectual property rights.
12. COMPLIANCE WITH LAWS
12.1 Compliance with Law. Each party shall comply with all applicable laws and regulations in connection with its provisioning, downloading, and/or use of the Product(s) and in performing its obligations hereunder. In addition, each Party explicitly agrees that it will comply with all applicable export controls, sanctions regulations, and embargo restrictions under the laws and regulations of the United States (“U.S.”), United Kingdom (“U.K.”) and the European Union (“EU”) as to transactions with restricted countries, persons and entities, including restrictions against dealings with blocked or otherwise prohibited parties (collectively, “__Sanctions Laws__”).
12.2 Sanctions Compliance. a. Customer represents and warrants that it is not, nor are any of its respective director(s), officer(s), agent(s), employee(s), or other authorized person(s), a “Sanctioned Person,” meaning any individual or entity (1) named on a governmental denied party or restricted list, including but not limited to any of the trade sanctions and trade controls lists maintained by the U.S. Department of Treasury, Office of Foreign Assets Control (“OFAC”) or any other body that administers Sanctions Laws; (2) organized under the laws of, ordinarily resident in, or physically located in a jurisdiction subject to comprehensive sanctions administered by OFAC (currently Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, or Luhansk People’s Republic regions of Ukraine/Russia)) (“Sanctioned Jurisdictions”); and/or (3) owned or controlled, directly or indirectly, 50% or more in the aggregate by one or more of any of the foregoing. Customer also represents and warrants that: i. it is not directly or indirectly acting on behalf of, any individuals or entities (including governments) that is a Sanctioned Person, and it will not involve any Sanctioned Persons in any capacity, directly or indirectly, in any part of this Agreement or performance under this Agreement; ii. It will not take any action that would cause Codecademy to be in violation of Sanctions Laws; iii. It will not sell, export, re-export, divert, use, or otherwise transfer any Products, Codecademy property, Codecademy Intellectual Property Rights, or Codecademy’s Confidential Information: (1) to or for any Sanctioned Persons or to or involving Sanctioned Jurisdictions; or (2) for purposes prohibited by any Sanctions Laws; iv. it will not source any components, technology, software, or data for utilization in the Products or any services provided by Codecademy: (1) from any Sanctioned Persons or Sanctioned Jurisdictions or (2) in contravention of any Sanctions Laws; and v. no payment made nor any other activity undertaken in connection with this Agreement is directly or indirectly derived from any unlawful activity. c. Customer will promptly notify Codecademy in the event of any violation, or reasonably anticipated violation, of any of the provisions of this Section 12.2.
12.3 Each party acknowledges that any breach of its obligations under this Section 12 shall constitute a material breach of this Agreement.
12.4 Remedy. Notwithstanding any other provision of this Agreement, Customer agrees that Codecademy, in its sole discretion, may take such actions as it deems necessary to remedy a breach of any provision in this Section 12.
13. MISCELLANEOUS
13.1 Force Majeure. With the exception of payment obligations, neither party shall be liable to the other for any loss or damage resulting from any delay or failure to perform its obligations hereunder, in any respect, if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, inability to secure materials and transportation facilities, riots, acts of war, epidemics or pandemics, terrorist acts, governmental actions, floods, earthquakes, natural disasters, fires, and explosions.
13.2 Customer Affiliates. a. Any Affiliate of Customer may enter into its own Ordering Instrument to license products and services from Codecademy subject to the terms and conditions of this Agreement. b. Except as otherwise set forth in the applicable Ordering Instrument, Customer may not transfer its licenses to any Products issued under this Agreement to any Affiliate of Customer without the prior express written consent of Codecademy.
13.3 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement, in whole but not in part, without the other party’s permission, to an Affiliate or in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction; provided that the assignee: (i) is not a direct competitor of the non-assigning party; (ii) provides prompt written notice of such assignment to the non-assigning party, including any updates to the Notices provision below; (iii) is capable of fully performing the obligations of the assignor under this Agreement; (iv) agrees to be bound by the terms and conditions of this Agreement; and (v) is not an entity that the non-assigning party is prohibited from doing business with under applicable law. Any purported transfer or assignment in violation of this Section 13.3 shall be null and void and of no force and effect.
13.4 Successors. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5 Notices. All notices given hereunder shall be in writing, and shall be deemed to be duly given if delivered by any of the following methods: (i) by personal delivery; (ii) by electronic mail; (iii) by registered or certified mail, postage prepaid, return receipt requested; or (iv) by a nationally recognized express courier. A notice sent by personal delivery, registered or certified mail, or express courier shall be deemed given on the date of receipt or refusal of receipt. A notice sent by electronic mail shall be deemed given on the date of electronic confirmation of receipt. Notices shall be sent to the respective addresses of each party as follows.
If to Codecademy:
Codecademy LLC 300 Innovative Way, Suite 2201 Nashua, NH 03062 Attn: Contracts Dept Admin Email: [email protected]
If to Customer: As set forth in the Ordering Instrument
13.6 Prevailing Party. In any litigation, arbitration, or other proceeding arising out of or related to this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, and its reasonable costs and expenses.
13.7 Severability. If any provision herein is held invalid or unenforceable by a court of competent jurisdiction, then such provision shall, to the extent of such invalidity or unenforceability, be severed. All other provisions shall continue in full force and effect and shall be construed so as to best effectuate the intention of the parties in executing it.
13.8 Federal Acquisition Regulations. The Products licensed under this Agreement are Commercial Computer Software under United States Federal Government Acquisition Regulations and agency supplements thereto. The Products are provided to the federal government and its agencies only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial software developed at private expense and not in the public domain. The use, duplication, or disclosure by the government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software at DFAR 252 227-7013. Unless exempt, Customer and Codecademy shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability. If applicable, Customer and Codecademy shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
13.9 No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and is not intended to convey any rights or benefits to any third parties, nor will this Agreement be interpreted to convey any benefits or rights to any person except the parties hereto.
13.10 Governing Law and Venue. This Agreement and all disputes hereunder, and the rights and obligations of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Delaware without reference to its conflicts or choice of law provisions. All claims, disputes, and/or lawsuits in connection with this Agreement shall be brought in the courts of the State of Delaware, and each party to this Agreement hereby irrevocably submits to the jurisdiction and venue of such courts.
13.11 Waiver. The failure or delay by either party in exercising any right or remedy hereunder shall not operate as a waiver of any such right or remedy. Waiver by either party of any default shall not waive any prior, concurrent, or subsequent defaults by the other party.
13.12 Counterparts, Electronic Signatures. This Agreement may be executed in counterpart(s), all of which shall be original, signed documents, and which together shall constitute a single agreement. In addition, the parties expressly agree to the use of electronic signatures to execute this Agreement, any Ordering Instrument, and/or any amendment to the foregoing.
13.13 Headings. The descriptive headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Each of the recitals set forth at the beginning of this Agreement is incorporated into this Agreement and is binding upon the parties hereto.
13.14 Relationship of the Parties. The relationship of Codecademy and Customer established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this Agreement, each party does not grant the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of it, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of it, or to transfer, release, or waive any right, title, or interest of it.
13.15 Entire Agreement; Amendment. This Agreement and any and all Ordering Instrument issued hereunder constitute the entire understanding and agreement between the parties with respect to the subject matter thereof and supersede all prior and contemporaneous proposals, agreements, and/or nondisclosure agreements, as well as representations between them, whether written or oral. In the event of any conflict between the provisions of this Agreement and any Ordering Instrument(s) issued hereunder, the Ordering Instrument(s) shall govern, provided, however, that any proposed amendment to any specific provision of these General Terms and Conditions, whether by Ordering Instrument or other written instrument, shall only be effective to modify such provision if it identifies the provision by its section reference and is signed by an authorized representative of each party, or such person’s designee. Any terms or conditions contained in any Customer purchase orders or other Customer documents, shall be void and of no force or effect, even if such document is executed by both parties after the Effective Date. Notwithstanding the foregoing, Customer may change its bill to and/or ship to address upon written notice to Codecademy.