This Modal Subscription Agreement (the “Agreement”) governs all Subscription Service Orders executed between Modal Learning, Inc. (“Modal”) and the Customer executing such Subscription Service Orders, and may be updated by Modal from time to time in its sole discretion as Modal changes or develops its offering of products and services. By signing a Subscription Service Order with Modal, Customer agrees to the latest version of this Agreement as posted on the date of the signature of the Subscription Service Order. Modal will inform the Customer of any material updates to this Agreement.
1. DEFINITIONS
“Administrator” means an End User designated by Customer who has the ability to access administrator tools of the Service, designate and remove End Users, and access reporting features of the Services.
“Affiliate” means any entity or person that controls, is controlled by, or is under common control with a party, where “control” means the possession, directly or indirectly, of more than 50% of the share capital or voting rights, or of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
“Content” means the information, documents, materials, products and services in text, visual, audio, video and interactive format (including live events), as well as software, platform or web interface, and any metadata made available to Customer in the course of delivering the Services, including the Documentation.
“Customer Data” means any type of data, information or material that identifies Customer and that is uploaded to the Platform by Customer or End Users.
“End User” means a unique individual user with dedicated login credentials who is invited to use the Service at Customer’s request.
“Documentation” means any user and training manuals delivered to Customer for use by Administrators including the technical and operational features and associated documentation for the Platform and Services.
“Fees” means all fees, charges, and payments due by Customer to Modal under an applicable Service Order, including but not limited to platform fees and subscription fees.
“Platform” means the website available at modal.io.
“Services” means the Content, interactive learning services and other associated services delivered by Modal to Customer via the Platform, including Third Party Materials.
“Service Order” means a subscription service order signed by both parties for access to the Services.
“Third Party Materials” means certain content, information, materials, tools and other features sourced from third parties and not proprietary to Modal, such as Youtube videos, LinkedIn Learning and Pluralsight courses and industry expert content articles and podcasts that are generally available from the web and accessible via links in the Platform.
2. SERVICES AND LICENSE
1. Services. Modal will provide the Services to Customer as set forth in the Service Orders and this Agreement.
2. Customer Data. The Platform will enable Customer and its End Users to submit and upload Customer Data to the Platform as part of the Services. Customer remains solely responsible for the security of transmission of Customer Data to the Platform. Customer shall not transmit to Modal any Customer Data or other sensitive information of Customer via unsecured channels. Modal shall implement security measures consistent with current industry standards to protect Customer Data from unauthorized access on the Platform. Modal shall not be responsible or liable under any circumstance for Customer Data accessed by third parties through illegal, unlawful or illicit means, or the exploitation of security gaps, weaknesses, or flaws unknown to Modal at the time. Modal will report to Customer any unauthorized access to Customer Data promptly upon becoming aware of such and will use commercially reasonable efforts to remedy any breach of security that permitted such unauthorized access and assist Customer in handling effects of the breach.
3. Support. Modal will provide End Users including Administrators with technical support services as provided to its other customers.
4. Grant of License. Modal grants Customer a non-exclusive, non-transferable and limited right, to use the Content and Services as set forth in the applicable Service Order(s), for the duration of the subscription term and for the maximum number of End Users as set forth in the Service Order. Such license is limited to Customer’s internal use only.
5. Per End User licenses. All licenses are provided on a per unique End User basis. Pricing of the Service is based on the maximum number of End Users and single platform reporting console as stated in a Service Order and any attempt by Customer or End Users to circumvent usage limits set forth in a Service Order is prohibited. End User access to the Services cannot be shared or used by more than one individual but may be reassigned from time to time to a new individual who is replacing a former End User who has terminated employment or otherwise changed job status or function, and no longer uses or accesses the Services or Content. Modal monitors access to the Services via End Users’ logins to verify compliance by Customer with the End User limits set forth in a Service Order.
6. End User Login Credentials. Each unique End User must have their own specific login credentials. Customer is responsible for maintaining the list of individuals to be invited as End Users and keeping End User account IDs and passwords secure and confidential, including by providing them only to End Users and instructing each person who receives account IDs and passwords that they are not to share or disclose them to any unauthorized person. Customer is responsible for any and all access to the Platform and Services and any activities performed on the Platform while using an End User login and password, even if such activities are undesired, unintended or fraudulent.
7. Documentation. The Documentation is provided solely to support Customer’s authorized use of the Services. Customer may copy and distribute the Documentation to Administrators, provided Modal’s copyright notice and proprietary legend are not removed from any copy. Any distribution, in any format of the Documentation to persons who are not employees or contractors of Customer is prohibited. Customer may not post or upload the Documentation to any publicly accessible websites, virtual cloud storage areas or equivalent.
8. Third Party Materials Licenses. Customer shall, and shall ensure that End Users shall comply with any third-party license terms applicable to the use of Third Party Materials.
9. Certifications. As part of the Services, Modal may deliver course completion or other proficiency certifications. Such certifications are not a state sanctioned educational degree, and in no way a warranty or guarantee of End User abilities with regards to any expertise or skill. A certification is personal to the End User who received it and may not be assigned or transferred to any other individual, including to Customer. Customer may not use an End User’s certification to promote its products or services.
10. Responsibility for End Users. Customer is responsible for all activities of End Users and shall ensure that each End User abides by the terms of this Agreement and all applicable local, state, national and foreign laws and regulations in connection with their access and use of the Service, including, without limitation, such laws and regulations related to the protection of personal data, international communications and the transmission and export of technical information. Customer may not, and shall ensure that End Users do not:
11. End User Restrictions. Customer acknowledges that through their use of the Services End Users will be posting content to the Platform and will be interacting with Modal staff, third party subject matter experts and other End Users. Customer may not, and shall ensure that End Users do not use the Services to:
12. Notification of Violation. Customer shall notify Modal immediately of any known or suspected violation of the restrictions set forth in this Agreement and use commercially reasonable efforts to stop such actions.
3. Services Fees
1. Fees, Payment Terms. In consideration for the Services, Customer shall pay Fees as set forth in the applicable Service Order in accordance with the payment schedule as set forth in such Service Order. All invoiced amounts of the Fees are due and payable within thirty (30) days of Customer’s receipt of Modal’s invoice unless otherwise provided in the applicable Service Order. All Fees due under any Service Order are not cancellable or refundable and Customer commits to all Fees due for the entire duration of the Service subscription term as set forth in each Service Order, except as provided in Section 4.4(c) of this Agreement.
2. Penalties for Late Payment. If any Fees are not paid within 15 days after Modal sends Customer a notice of delinquency, Modal may, at its option:
3. Taxes. Fees as set forth in Service Orders do not include taxes. Except for those taxes for which Customer provides Modal certification of a tax-exempt status, if Modal is required to pay sales, use, property, value-added, or taxes based on licenses granted or services performed, or taxes based on Customer’s use of the Service, then Customer shall be responsible for the payment, in full, of such taxes and Modal shall bill Customer accordingly.
4. Term and Termination
1. Term. This Agreement commences on the Effective Date and unless earlier terminated pursuant to the terms of this Section, the Agreement will continue for so long as there is a Service Order in effect between the parties.
2. Material Breach. This Agreement may be terminated by either party upon a material breach by the other party of the terms of this Agreement which has not been cured within thirty (30) days after the breaching party has received written notice of such alleged breach. Any individual Service Order may be terminated by either party upon a material breach by the other party of the terms of that Service Order which has not been cured within thirty (30) days after the breaching party has received written notice of such alleged breach.
3. Legal or Governmental Order. Modal may suspend or terminate Customer’s access to the Services if Modal is required to do so by a law enforcement, judicial or other governmental order.
4. Effect of termination. Upon termination of this Agreement:
5. Personal Data Processing
1. Modal As Processor/Service provider. As regards the California Consumer Privacy Act, the parties agree that with respect to the provision of Services, Customer is the business and Modal is the service provider. As regards the General Data Protection Regulation, the parties agree that with respect to the provision of Services, Customer is the controller and Modal is the processor. Modal shall not retain, use, or disclose and personal information of any End User for any purpose other than providing the Services or in furtherance of (ii) analytics, counting, and auditing, (iii) fraud detection, (iv) debugging, (v) or internal research for improvement of the Services (business purpose). Modal also agrees not to further collect, sell, or use any personal information except as necessary to perform the business purpose. In the event where Modal will process personal information of End Users located in the European Economic Area, the parties shall execute a mutually agreed data processing agreement incorporating the then applicable Standard Contractual Clauses for the transfer to and processing of personal data in the United States.
2. Modal as Business/Controller. Notwithstanding the foregoing Section 5.1, in the event where an individual End User instructs Modal to maintain and store the personal information of such End User for and on behalf of such individual End User, Modal shall accordingly act as a business or controller vis a vis such individual End User in accordance with Modal’s privacy policy.
6. Intellectual Property Rights
1. Customer Data. Customer shall retain all rights, title and interest (including any and all intellectual property rights or proprietary rights recognized in any country or jurisdiction in the world, whether registered or not, and whether in existence as of the Effective Date or arising or recognized thereafter, and all applications and registrations thereof, “IP Rights”) in and to Customer Data. Customer is solely and fully responsible for the accuracy, quality, integrity, lawfulness, reliability, appropriateness and usage and distribution rights, including all intellectual property rights with respect to Customer Data. Customer hereby grants to Modal a non-exclusive, worldwide, royalty-free right to use, host, copy, store, transmit, modify, process, and display Customer Data solely to the extent necessary to provide the Services to Customer..
2. Services. Modal and its licensors are the exclusive and sole owner of all IP Rights in and to (i) the Platform, the Services and the Content (other than Third Party Materials), any future modification, update, upgrade or configuration of the Services, and all documentation relating thereto (including product specifications, development, testing and use) and (ii) aggregate data derived from End Users’ use of the Platform and Services provided that such aggregate data does not directly or indirectly identify Customer or any End User.
3. Customer Feedback. Customer grants to Modal, a nonexclusive, perpetual, royalty-free, irrevocable, non-transferable, and non-sublicensable, license to use any suggestions, ideas, enhancement requests, feedback, recommendations, specifications or other information provided by Customer or End Users relating to the Platform and/or Services.
4. Third Party Materials. Trademarks, service marks, graphics, and logos used in connection with Third Party Materials belong to their respective owners. Nothing in this Agreement grants Customer any right, title, or interest in or to (including any license under) any IP Rights in or relating to, the Third Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Third Party Materials are and will remain with the respective rights holders in the Third Party Materials.
5. Marketing. Customer grants to Modal a limited right to use the Customer name, trademarks, and logos for the sole purpose of inclusion in marketing materials and Modal’s website among the list of Modal customers. Modal will comply with Customer’s trademark and logo use guidelines as Customer may provide to Modal from time to time.
7. Limited Warranty and Disclaimers
1. Limited Warranty. Modal represents, warrants and covenants to Customer that Modal will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, will devote adequate resources to support the number and type of End Users specified in the Service Order, and will generally meet its obligations under this Agreement.
2. No Warranty for Third Party Materials. Modal makes no warranty with respect to Third Party Materials and Customer’s sole remedy with respect to any Third Party Materials shall be to bring a claim against the owner or provider of the Third Party Material. Modal does not guarantee in any manner the reliability, validity, accuracy or truthfulness of any Third Party Material.
3. Subject Matter Expert Disclaimer. Modal may contract with third party subject matter experts to provide Content and Services. Modal disclaims responsibility and liability for any interactions between End Users and such third party subject matter experts. Modal is not responsible for disputes, claims, losses, injuries, or damage of any kind that might arise out of or relate to Services or Content provided by a third party subject matter expert, including, but not limited to, any reliance upon any information provided.
4. General disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS”. MODAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, CUSTOMER HEREBY CONFIRMS AND UNDERSTANDS THAT THE SERVICE IS SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MODAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE THAT MAY RESULT FROM SUCH LIMITATIONS AND PROBLEMS.
8. INDEMNIFICATION
1. By Customer. Customer shall defend, indemnify and hold harmless Modal and its licensors, and each such party's officers, directors, employees, attorneys and agents from and against any claim by a third party (i) alleging that Modal’s use of the Customer Data infringes the IP Rights, rights of privacy or publicity or other rights of, or has caused harm to, a third party; (ii) resulting from the breach by Customer or End Users of this Agreement and/or (iii) to the extent resulting from Customer’s combination, operation, or use of the Services with any hardware, system, software, network or other materials or services not provided by Modal or Customer’s modification of the Services without Modal’s prior written approval.
2. By Modal.
3. Conditions of Indemnification. The indemnification obligations are subject to the following conditions: (i) the indemnitee notifies the indemnitor in writing of the alleged claim immediately upon receiving knowledge of it; (ii) the indemnitee fully cooperates with the indemnitor by providing all documents and information reasonably required for the defense or settlement of the claim; (iii) indemnification shall include holding indemnitee harmless from costs of defense or settlement of the claim and damages finally adjudicated by a court of law or binding arbitration; and (iv) the indemnifying party has sole authority to defend or settle the claim, provided, however, that the indemnifying party shall not enter into any settlement that would impose any economic, monetary or injunctive obligation upon the indemnified party without the prior written consent of the indemnified party. Any settlement with any third-party that implies any modification of Modal’s products or services is subject to Modal’s prior written approval.
9. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY EXCEED THE AMOUNTS PAID BY AND/OR DUE FROM CUSTOMER TO MODAL UNDER THIS AGREEMENT, WITHIN THE TWELVE MONTHS PRIOR TO THE DATE THE RELEVANT CLAIM AROSE. IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. CONFIDENTIAL INFORMATION
1. “Confidential Information” shall mean information exchanged between the parties, either directly or via access to or provision of the Services, orally, electronically, visually or in document or other tangible form, which is identified as confidential and/or proprietary or should reasonably be deemed confidential by the recipient. Confidential Information shall include existing or contemplated products and services, processes, techniques or know-how, marketing and business development plans and strategies, financial information and projections, and customer and supplier lists of each of the parties. Customer Data is Confidential Information of Customer. The terms of this Agreement, pricing and commercial terms of Service Orders, and the Content are confidential Information of Modal.
2. Each Party will take reasonable measures to prevent unauthorized disclosure and use of the other Party’s Confidential Information. Without limiting the foregoing, each Party will take at least those measures that it takes to protect the secrecy of its own confidential information. The receiving party further acknowledges that any Confidential Information it receives is and shall remain the disclosing party’s property.
3. Notwithstanding the foregoing, information shall not be Confidential Information to the extent that it (a) is already known to the recipient and not subject to any confidentiality restrictions at the time it is obtained, (b) is or becomes publicly known through no fault of the recipient, (c) is rightfully received by the recipient from a third party with the legal right to disclose the information and without restrictions on further disclosure, (d) is required to be released by the recipient in compliance with a court order or other directive of law, or (e) is independently developed by the recipient.
4. Any use or disclosure of Confidential Information in violation of the terms of this Agreement may cause loss and/or damage to the disclosing party for which an adequate remedy at law may not exist, and the disclosing party may seek temporary or permanent injunctive relief from a court of competent jurisdiction.
11. GENERAL
1. No Corruption. Customer represents and warrants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from a Modal employee or agent in connection with this Agreement. If Customer learns of any violation of the above restriction, it shall promptly notify Modal’s executive management.
2. Export control. In its use of the Services, Customer agrees to comply with all export laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Customer shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and Customer shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
3. Government Contractors. Customer represents and warrants that the Services provided by Modal are not a deliverable under any contract between Customer and any US federal government agency or entity. To the extent used by Customer for the performance of a contract with any US federal government agency or entity, Customer represents and warrants that (i) the Services merely facilitate the performance by Customer of its government contract, (ii) the Services are ancillary and incidental to the products and services delivered by Customer to the US federal government agency or entity and (iii) Modal does not qualify as a subcontractor with respect to any CFR regulations applicable to subcontractors of government contractors.
4. Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to an Affiliate or a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets, provided that the assignee shall be bound by all of the terms of this Agreement.
5. Notices. All notices or other communications required to be given under this Agreement shall be in writing and delivered either personally, by electronic mail, or by U.S. mail, or overnight courier service, and addressed as provided in the Service Order. Notices delivered personally, by electronic mail or courier service shall be effective upon delivery, and notices delivered by mail shall be deemed received three (3) business days after deposit in the mail.
6. Governing law and disputes. This Agreement is governed by the laws of the State of California without regard to its conflicts of laws provisions. Any dispute arising out of or relating to this Agreement, or the breach thereof shall be settled in the state or federal courts of San Francisco county, California.
7. Interpretation. In the event of any discrepancy between the terms of this Agreement, and the terms of a Service Order, the terms of the Service Order shall take precedence but only with respect to the Services purchased under such Service Order.
8. Entire Agreement; Modifications and Waivers. This Agreement constitutes the full and entire understanding and agreement between the Parties with regard to the subjects hereof. No term of this Agreement may be modified except in writing and signed by authorized representatives of both parties. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. The waiver by any party of any breach of any term, covenant, condition or agreement contained in this Agreement or a Service Order shall not be deemed to be a waiver of any subsequent breach of the same or a breach of any other term, covenant, condition or agreement.
9. Severability. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
10. Force Majeure. Neither party shall be responsible for any failure to perform, due to unforeseen circumstances, or to causes beyond the parties’ reasonable control, including but not limited to acts of God, invasion, war, riot or other civil unrest, embargoes or blockades, acts of civil or military authorities, fire, floods, earthquake or explosion, accidents, epidemic, pandemic, strikes, labor stoppages or slowdowns or other industrial disturbances, shortages or curtailment of transportation, facilities, fuel, energy, labor, or materials; passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, shelter-in-place order, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power, telecommunications or cloud services. In the event of any such delay, either party may defer any delivery dates for a period equal to the time of such delay. Notwithstanding the foregoing, if either party is in default under this Agreement as a result of the circumstances described above for more than forty-five (45) days, the non-defaulting party may terminate this Agreement unless the Parties agree to modify this Agreement in good faith to take into account the new circumstances.
11. Surviving Provisions. Any payment obligations accrued pursuant to this Agreement, as well as the provisions of Section 1, and 6 through 11 of this Agreement will survive termination or expiration of this Agreement.
12. Electronic Signatures. Service Orders may be executed by inserting an electronic signature comprising an image of the signature of an authorized signing officer.