THIS TOTALPREP-FOR-BUSINESS PORTAL AND SUBSCRIPTION AGREEMENT (the "AGREEMENT") CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN TOTALPREP, INC., A DELAWARE CORPORATION ("COMPANY") AND YOU (AND THE ORGANIZATION YOU REPRESENT) ("CUSTOMER") AND IT GOVERNS THE CUSTOMER’S ACCESS AND USE OF THE COMPANY’S CUSTOMER PORTAL SERVICE AND RELATED SERVICES (collectively, the"SERVICE"). BY ACCESSING OR USING THE SERVICE, THE CUSTOMER IS CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE CUSTOMER MUST NOT ACCESS OR USE THE SERVICE.
TotalPrep offers various online courses at its primary website located at www .TotalPrep.com (the "Site"). TotalPrep also offers the Service under the name "TotalPrep for Business" that permits other entities to create their own portals to the Site, populate them with courses, and allow their employees to access and enroll in courses through that portal. The Service includes the tools and/or documentation needed to access the portal, customize the portal, post custom courses and other content through the portal, and other features of TotalPrep for Business service that TotalPrep makes available to Customer as described at www.totalprep.ng/terms/ . This Agreement refers to the portal page Customer creates using the Service as the "Customer Portal," and the employees and other persons Customer allows to use the Customer Portal as "Users."
The Customer Portal will be based on a template that is co-branded. Customer shall select a unique URL identifier for the Customer Portal; establish User names, passwords and maintain their security. Customer will be liable for any breach of security caused by its conduct, and will indemnify and hold harmless TotalPrep from any third party claims of infringement relating to the Customer identifier. TotalPrep may include Customer in a list of customers and identify Customer online as a user of the Service. Customer will appoint an administrator for the Customer Portal that will be responsible for its supervision, determining the courses offered, setting up User accounts and monitoring them, and other similar activities. TotalPrep will make available various tools to permit the administrator to perform these activities.
Accessing the Service and the Customer Portal.
In the course of using the Service and operating the Customer Portal, Customer shall not (and shall not permit Users to): provide incorrect or knowingly false information; copy, distribute, modify, reverse engineer, deface, tarnish, mutilate, hack, or interfere with the Site or Service or any courses (other than Customer Courses); frame or embed the Site, Service, Customer Portal or any courses; introduce any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Site or Service; scrape, spider, use a robot or other automated means of any kind to access the Site, Service or courses; rent, timeshare, lease or otherwise permit third parties other than Users to access or use the Service or Customer Portal. If Customer’s access to the Service is based on a number of Users, then all such Users must be Customer employees or full-time contractors, and User access cannot be assigned or transferred from one employee to another employee except in connection with a change of job assignment or termination of employment.
Fees and Payment.
Customer will pay TotalPrep the fees for the services and activities under this Agreement. The terms of these fees shall be agreed to by the Customer at the same time it agrees to this Agreement. You agree to pay the fees for an entire Term, even if you cancel this Agreement anytime during a Term. All fees shall be paid in US dollars and are non-refundable. Fixed fees are payable in advance for the period of the plan selected. Recurring fees are due within fifteen (15) days of the beginning of each month or other period. Late payments shall be subject to 1.5% interest per month (or the maximum permitted by law). Customer shall be responsible for any sales, value-added, services, use or similar taxes (other than taxes on TotalPrep’s income). If Customer elects to pay fees by credit or debit card or direct funds transfer, then Customer hereby authorizes TotalPrep or its third-party payment processor to charge such card or account. Customer shall provide TotalPrep or its third-party payment processor with all necessary billing, card and account information.
TOTALPREP AND CUSTOMER EACH PROVIDES THE SERVICES, COURSES, AND OTHER MATERIALS HEREUNDER "AS IS" AND HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, AVAILABILITY, OR SECURITY.
LIMITATION OF REMEDIES AND DAMAGES.
NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (C) ANY LIABILITY HEREUNDER IN EXCESS OF THE FEES PAID IN THE TWELVE (12) MONTHS PRIOR TO THE DATE A CLAIM AROSE. THE FOREGOING LIMITS SHALL NOT APPLY TO CLAIMS ARISING FROM CUSTOMER’S BREACH OF SECTION 5, EITHER PARTY’S BREACH OF CONFIDENTIALITY OR UNDER THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT.
For the purposes of this section, all materials that a party provides to the other or otherwise makes available pursuant to this Agreement shall be that party’s "Content." The Service and Site shall be TotalPrep’s Content. The Customer Courses shall be Customer Content. Standard Courses and Subscription Courses shall not be either party’s Content. Each party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other party and its employees, directors, affiliates and agents (the "Indemnified Parties") from any claims, allegations, investigations, losses, damages and fees (including court costs and attorneys’ fees) ("Claims") arising from the infringement of the Indemnifying Party’s Content by a third party’s patent, copyright, trademark, trade secret, privacy or other intellectual property or proprietary rights; provided, however, that the Indemnified Parties (a) gives the Indemnifying Party prompt notice of the Claim; (b) allow the Indemnifying Party sole control of the defense or settlement of the Claim; and (c) assist with such defense or settlement at the Indemnifying Party’s expense. In the event that the Service or Site becomes subject to a Claim or TotalPrep believes will become subject to a Claim, TotalPrep may elect to (i) defend or settle the Claim as above; (ii) procure the right for Customer to continue to use the Service or Site without material reduction in functionality; (iii) modify the Service or Site to preclude the Claim; or (iv) terminate this Agreement and refund pro rata for the remainder of the then-current term any prepaid fees. THE FOREGOING IS THE SOLE REMEDY FOR CONTENT INFRINGEMENT CLAIMS.
In the event that any of the provisions of this Agreement shall be held unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by either party without consent, except in connection with an acquisition of that party, or merger or other change of control transaction. This Agreement shall be governed by the laws of the State of California without regard to its conflicts of laws provisions and any legal claim, suit, action or proceeding arising out of this Agreement or the matters contemplated hereunder or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule and shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. EACH PARTY RECOGNIZES THAT THE DISCLAIMERS, LIABILITY LIMITS AND REMEDIES SET FORTH HEREIN ARE MATERIAL, BARGAINED FOR BASES FOR EACH PARTY’S DECISION TO ENTER INTO THIS AGREEMENT.