Last Updated: 26.12.2023
For employers that are integrating Online Courses into their corporate educational programs, these terms and conditions set forth the means by which your employees may receive access to ITOPSTOP websites, applications and offerings, and the terms and conditions for its provision (also referred to as the “Agreement”).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR EXECUTING A KEY TERMS SCHEDULE, ORDER FORM OR OTHER ORDER DOCUMENT REFERENCING THIS AGREEMENT; FURTHER, BY PROVIDING YOUR ACCESS TO THE SERVICES TO YOUR EMPLOYEES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT PARTICIPATE IN COMPANY SERVICES OR OFFERINGS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
For purposes of these terms, and your access, you, the employer shall be referred to as the “Business Customer” The terms and conditions found herein are intended for incorporation by reference into the invoice, purchase order or other ordering document if entered into between Itop 2021 Ltd. (the Company) and Business Customer or provided to Business Customer.
1. INTRODUCTION.
This agreement grants a license to Business Customer to use ITOPSTOP under the terms set forth herein and in the applicable Order Form. Subsequent orders may be placed through additional Order Forms under this Agreement. This Agreement shall govern Business Customer’s initial purchase as of the Effective Date as well as any future purchases made by Business Customer that reference this Agreement.
2. DEFINITIONS.
“Affiliate” means an entity that controls, or is under the common control of, another entity such as a subsidiary, parent, or other affiliated entity or business. For purposes of this definition, ”Control” means having ownership of the majority of voting stock or assets of another entity or business.
“Applicable Data Privacy Laws” shall mean applicable laws relating to data privacy, the protection of personal information or data, and the cross-border transfer of personal information or data, including, without limitation, the General Data Protection Regulation (“GDPR”), and any European Union law or regulation that may be enacted to replace the EU Directive or the GDPR.
“Business Customer Personal Data” shall mean Registration Data (i.e., the data of each student, incl. the data within the imported CSV file with students) provided by Business Customer to the Company for the purpose of enrolling students to ITOPSTOP. The Company does not receive any additional personal data from Business Customer other than data herein defined.
“Educational Content” means Educational Content made available by the Company in connection with an Online Course, including course descriptions, course videos, interactive features, student projects or other content.
“User Terms” means the then-current version of the Company’s Business Student Terms, Privacy Policy, Community Code of Conduct, Code of Ethics and other policies applicable to Students.
“ITOPSTOP” means the Company online education marketplace accessible through itopstop.com, itopstop.org and itopstop.eu or any other sites or services identified by the Company from time-to-time.
“License Start Date” means the start date for License designated on the applicable Order Form.
“License Term” means the duration of Online Course access designated on the applicable Order Form beginning on the License Start Date.
“License” means access to the Online Courses during the applicable License Term.
“Online Course” means an online learning program for a specific topic consisting of (i) Educational Content, (ii) access to tools for online collaboration between Students and other enrollees and (iii) online feedback and coaching from the Company-selected course lectors, mentors and/or reviewers. Online Courses may be provided through ITOPSTOP, Third-Party Tools or other means designated by the Company.
“Order Form” means a document form incorporated into this Agreement or subsequently entered into under this Agreement.
“Purchase Order” means a document supplied by Business Customer for their internal administrative purposes to support Business Customer’s accounting records and facilitate payment of invoices as set forth in Section 5. Fees and Payments below.
“Services” means, without limitation, all information, content, services, and Educational Content made available through any the Company website, social media channels, or other online or onsite channels that enable Students to participate in any Company online educational programs, Online Courses and related services, or any part thereof.
“Specifications” means either a specific document describing the services, or “descriptions, instructions, and/or documentation related to the delivery of the Services set forth in the applicable Company Website”.
“Student” means a named enrollee in an Online Course.
“Third-Party Tools” means any website, application, software, or technology used in the provision of the Services but not owned by the Company, including but not limited to messaging, communications platforms, online resources and repositories, or programming language tools, translators or compilers.
“Website” means itopstop.com, itopstop.org and itopstop.eu or other websites owned by the Company and licensed under this Agreement.
3. LICENSE TO ITOPSTOP.
3.1. License Grant. Subject to Business Customer’s compliance with this Agreement, the Company hereby grants Business Customer, including Students, worldwide, non-exclusive, non-transferable, non-sublicensable limited right and license (a) to access, internally use and display the Services, including the content, at Business Customer’s location solely as necessary to participate in the Online Courses as permitted hereunder and indicated in the applicable Order Form, and (b) to download corresponding Educational Content. Business Customer must abide by all copyright notices, in any Online Course, or in the Educational Content. Business Customer may not delete any attributions, legal or proprietary notices on the Websites, in the Online Courses, or on the Educational Content. Business Customer is responsible under this Agreement for non-compliance with usage rights by its Students.
3.2. Business Customer Obligations. Business Customer may use ITOPSTOP only in accordance with the Agreement (including any Order Form) for its internal business purposes. Business Customer shall keep user ID and password information strictly confidential and not share such information with any unauthorized persons. Business Customer will not (and will not allow anyone else to): (a) rent, lease, copy, disclose, provide access to or sublicense ITOPSTOP; (b) use ITOPSTOP for the benefit of or to provide any service to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to ITOPSTOP, except to the extent expressly permitted by applicable law (and then only upon advance notice to the Company); (d) remove any product-identification or proprietary notice or legend from ITOPSTOP; (e) publicly disseminate information regarding the performance of ITOPSTOP.
4. STUDENT SUCCESS ACKNOWLEDGMENT.
4.1. Seat License Term. The Company’s provision of Online Courses is dependent on Business Customer identifying suitable Students and ensuring that such Students have sufficient time allocated in their schedules to complete Online Courses prior to the end of the applicable Seat License Term. Business Customer acknowledges that the Company is not responsible for any Student not completing an Online Course during the applicable Seat License Term.
5. FEES AND PAYMENTS.
5.1. Fees. All fees are as set forth in the applicable Order Form and shall be paid by Business Customer within ten (10) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 7. Limited Warranty, and Section 10. Indemnification, all fees are non-refundable. Business Customer is required to pay any sales, use, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of the Company. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. The Company may enter into purchase orders directly from or with Business Customer’s Affiliates, who shall then be subject and party to this Agreement as if they were the Business Customer; provided however, Business Customer shall be a guarantor of all purchases by its Affiliates.
5.2. Business Customer Purchase Orders. No provision of any Business Customer Purchase Order or other business form employed by Business Customer will supersede the terms and conditions of the Agreement, and any such document relating to the Agreement shall be for administrative purposes only with no legal effect. If no Purchase Order number is supplied by Business Customer, Business Customer agrees to timely pay a proper submitted invoice without reference to a Purchase Order number.
6. TERM AND TERMINATION.
6.1. Term. The Agreement (including these Business License Terms) is effective as of the Effective Date and expires on the date of expiration or termination of all Seat Licenses.
6.2. Termination for Cause. Either party may terminate the Agreement (and all related Order Forms) if the other party (a) fails to cure any material breach of the Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3. Effect of Termination. Upon any expiration or termination of the applicable Seat License Term or the Agreement, the Business Customer shall immediately cease any and all use of and access to ITOPSTOP Educational Content made available in connection with the applicable Seat License, including ITOPSTOP and any Online Course. The Business Customer acknowledges that following termination it shall have no further access to any ITOPSTOP Educational Content, and that the Company may delete any such data as may have been stored by the Company at any time. Furthermore, the Business Customer acknowledges that upon any expiration or termination of a Course License, Students will not be able to access or complete any Online Course in progress. Except where an exclusive remedy is specified, the exercise of either party of any remedy under the Agreement, including termination, will be without prejudice to any other remedies it may have under the Agreement, by law or otherwise.
6.4. Survival. The following Sections shall survive any expiration or termination of the Agreement: 3.2. Business Customer Obligations, 5. Fees and Payment, 6. Term and Termination, 7.2. Warranty Disclaimer, 8.1. ITOPSTOP Educational Content, 9. Limitation of Remedies and Damages, 10. Indemnification, 11. Confidential Information, 12. Data Privacy and 14. General Terms.
7. LIMITED WARRANTY.
7.1. Limited Warranty. The Company warrants, for the Business Customer’s benefit only, that it will provide the Online Courses in substantial accordance with the Specifications, including any descriptions set forth on the applicable Order Form. The Company’s sole liability (and the Business Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to the Business Customer, for the Company to use commercially reasonable efforts to correct the reported non-conformity, or if the Company determines such remedy to be impracticable, either party may terminate the applicable Seat License and the Business Customer shall receive as its sole remedy a refund of any fees the Business Customer has pre-paid for use of such Seat License for the terminated portion of the applicable Seat License. The limited warranty set forth in this Section shall not apply: (i) unless the Business Customer makes a claim within thirty (30) days of the date on which the Business Customer first noticed the non-conformity, or (ii) to access to Online Courses provided on a no-charge or evaluation basis.
7.2. Warranty Disclaimer.
a) EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, ALL ONLINE COURSES AND PERFORMANCE DATA ARE PROVIDED “AS IS”. NEITHER THE COMPANY NOR ITS VENDORS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT BUSINESS CUSTOMER’S OR ANY STUDENT’S USE OF ANY ONLINE COURSE WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE COMPANY. THE BUSINESS CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
B) THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE ONLINE COURSES WILL BE ACCURATE, COMPLETE OR CURRENT, MEET THE BUSINESS CUSTOMER’S NEEDS OR ACHIEVE THE BUSINESS CUSTOMER’S DESIRED RESULTS OR THAT ANY STUDENT WILL SUCCESSFULLY COMPLETE AN ONLINE COURSE. THE COMPANY IS NOT RESPONSIBLE FOR ANY DECISIONS THE BUSINESS CUSTOMER MAKES BASED ON PERFORMANCE DATA.
7.3. Third-Party Tools. The Company may utilize Third-Party Tools (including, for example, Google Analytics, YouTube or GitHub) as the subject matter, as tools related to the subject matter, or to deliver elements of Online Courses. While using Third-Party Tools Students may be subject to such providers’ terms and conditions, and, in any event, the Company is not responsible for the operation of, or any changes to, Third-Party Tools or the acts or omissions of Third-Party Tool providers.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1. ITOPSTOP Educational Content. The Business Customer agrees that the Company or its vendors retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to Online Courses, including Educational Content and ITOPSTOP, training videos, performance data, and any and all related and underlying technology, content and documentation; and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “ITOPSTOP Educational Content”). Except for the limited License rights expressly set forth in the Agreement, and not withstanding any use of the words “purchase”, “sale” or like terms, no other rights in any ITOPSTOP Educational Content are granted to the Business Customer.
9. LIMITATION OF REMEDIES AND DAMAGES.
9.1. Consequential Damages Waiver. EXCEPT FOR ANY CLAIM ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS IN SECTION 11. CONFIDENTIAL INFORMATION, NEITHER PARTY (NOR ITS VENDORS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap. THE COMPANY’S AND ITS VENDORS’ ENTIRE LIABILITY TO THE BUSINESS CUSTOMER ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THE BUSINESS CUSTOMER TO THE COMPANY DURING THE PRIOR TWELVE (12) MONTHS UNDER THE AGREEMENT.
9.3. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose.
10. INDEMNIFICATION.
10.1. Company Indemnification. The Company shall defend the Business Customer from and against any claim by a third party alleging that an Online Course when used as authorized under the Agreement infringes a copyright or trademark and shall indemnify the Business Customer from and against any damages and costs awarded against the Business Customer or agreed in settlement by the Company (including reasonable attorneys’ fees) resulting from such claim, provided that the Company shall have received from the Business Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for the Company to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of the Business Customer. If the Business Customer’s use of an Online Course is (or in the Company’s opinion is likely to be) enjoined, if required by settlement or if the Company determines such actions are reasonably necessary to avoid material liability, the Company may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for the Business Customer the right to continue using such Online Course; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to the Business Customer the fees paid by the Business Customer for the portion of the Online Course that was paid by the Business Customer but not rendered by the Company. The foregoing indemnification obligation of the Company shall not apply: (1) if such Online Course is modified by any party other than the Company, but solely to the extent the alleged infringement is caused by such modification; (2) if such Online Course is combined with products or processes not provided by the Company, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Online Course; (4) to any action arising as a result of Third-Party Tools or any third-party deliverables or components contained within such Online Course; or (5) if the Business Customer settles or makes any admissions with respect to a claim without the Company’s prior written consent. THIS SECTION SETS FORTH THE COMPANY’S AND ITS VENDORS’ SOLE LIABILITY AND THE BUSINESS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.2. Business Customer Indemnification. The Business Customer shall indemnify, defend and hold harmless the Company, its subsidiaries and affiliates, and each of their officers, directors, agents, employees, and assignees from any and all claims, liabilities, expenses and damages, including reasonable attorneys’ fees and costs, made by any third party relating to or arising out of the Business Customer’s, including Students, (a) use or attempted use of the Services in violation of this Agreement, (b) use or attempted use of any code, program, data, information or any other Educational Content provided through the Services in a manner inconsistent with this Agreement, (c) violation of any law, or (d) posting or otherwise making available to the Business Customer, or Student, created material on or through the Services, including without limitation any claim of infringement of intellectual property or other proprietary rights.
11. CONFIDENTIAL INFORMATION.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any ITOPSTOP Educational Content and the terms and conditions of the Agreement shall be deemed Confidential Information of the Company without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under the Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for the Company, the subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
12. DATA PRIVACY.
Inside EU: The parties acknowledge that any registration data (i.e., name and email address) for Students who reside in the EEA shall be subject to General Data Protection Regulations of the European Union (“GDPR”). With respect to registration data as between the Business Customer and the Company, the Company will be considered a Data Processor and the Business Customer the Data Controller.
Outside EU: The parties agree to comply with all applicable Data Privacy Laws. The Company agrees that it shall: (a) only use the Business Customer Personal Data for the purpose of providing the Service and as required by law; (b) not sell or exchange for anything of value or use for any other purpose (other than as set forth in (a)) Business Customer Personal Data; (c) provide the Business Customer with commercially reasonable assistance in responding to any request that the Business Customer may receive under any applicable law that provides individuals with rights regarding the Business Customer Personal Data; and (d) provide the Business Customer with commercially reasonable assistance to the extent necessary for the Business Customer to comply with the GDPR, such as providing information that the Business Customer may require to provide an adequate privacy notice to individuals whose personal data is contained in the Business Customer Personal Data and/or providing responses to inquiries from a regulator.
13. CO-MARKETING.
The Business Customer grants the Company the right to include the Business Customer’s name and logo on a list of the Company Business Customers provided however that any press releases or other public statements published by either party regarding the parties’ relationship or this Agreement shall be agreed by the parties in writing prior to such publication.
14. GENERAL TERMS.
14.1. Assignment. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign the Agreement without the advance written consent of the other party, except that either party may assign the Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section will be null and void.
14.2. Severability. If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that the Agreement shall otherwise remain in effect.
14.3. Governing Law. Jurisdiction and Venue. The Agreement shall be governed by the Bulgarian laws without regard to conflicts of law provisions thereof. The jurisdiction and venue for actions related to the subject matter hereof shall be the competent Bulgarian court and both parties hereby submit to the personal jurisdiction of such court.
14.4. Notice. All notices required or permitted under this Agreement will be in writing, provided that the Company may send such written notice by Email, ITOPSTOP dashboard, or other similar electronic communication.
14.5. Amendments. Waivers. The Company retains the right to amend the terms of this Agreement at any time, and for any reason, with or without any prior notice to the Business Customer, at its sole discretion. No waiver will be implied from conduct or failure to enforce or exercise rights under the Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
14.6. Entire Agreement. This Agreement, together with any Online Courses, statements of work, Terms and Conditions, Code of Ethics , Community Code of Conduct and Privacy Policy constitutes the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. The Business Customer acknowledges that the Online Courses are online, License-based products, and that in order to provide improved Business Customer experience the Company may make changes to the Online Courses.
14.7. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees for services rendered) if the delay or failure is caused by unforeseen events that occur after the signing of the Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, epidemic, substantial failure or diminishment of electricity, telecommunications networks, or refusal of a license by a government agency.
14.8. Subcontractors. The Company may use the services of third-party vendors, lectors, mentors, reviewers and other subcontractors and permit them to exercise the rights granted to the Company in order to provide the Online Courses and ITOPSTOP under the Agreement, provided that the Company remains responsible for (i) compliance of any such subcontractor with the terms of the Agreement and (ii) for the overall performance of the Company as required under the Agreement.
14.9. Subpoenas. Nothing in the Agreement prevents the Company from any disclosures to the extent required by law, subpoenas, or court orders, however the Company will use commercially reasonable efforts to notify the Business Customer, where permitted to do so.
14.10. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
14.11. Export Control. In its use of ITOPSTOP, the Business Customer agrees to comply with all export and import laws and regulations of Bulgaria and other applicable jurisdictions. Without limiting the foregoing, (i) the Business Customer represents and warrants that it is not listed on any government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a government embargo or that has been designated by the government as a “terrorist supporting” country, (ii) the Business Customer shall not knowingly designate any employees as Students in violation of export laws, and (iii) the Business Customer shall not submit to ITOPSTOP any information that is controlled under the International Traffic in Arms Regulations.
14.12. Additional Services. Subject to the terms and conditions set forth herein and the applicable Order Form, the Business Customer may elect to purchase from the Company additional services (e.g., custom projects, etc.) in connection with Online Courses (“Additional Services”). The parties will negotiate in good faith the terms and conditions relating to the provision of such services in an Order Form, which shall include at a minimum: a) a description of the requested Additional Services; b) a projected date of its availability; c) additional charges associated with the Additional Services; and d) any other information deemed important by the parties.