Business Subscription Agreement
This Agreement was last updated on Nov, 2019.
This Subscription Agreement (“Agreement”) governs the access and use of ThirdA for Business and ThirdA for Government.
1. Definitions. As used herein:
1.1 “Administrator” is an individual appointed by Customer who has the ability to customize the Customer Account, manage Users, access Insights and related reporting, access ThirdA Administrator Tools, and populate the Customer Account with Subscription Courses or Marketplace Courses.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Course API” means an application programming interface that allows Customer to access certain information relating to Subscription Courses, Marketplace Courses, or Customer Courses, including but not limited to course title and similar information.
1.4 “Customer” means the party entering into an Order Form with ThirdA, or otherwise signing up to use ThirdA.
1.5 “Customer Account” means the site where Users access the Subscription Courses and any Marketplace Courses licensed by Customer, and where Administrators may access the ThirdA Administrator Tools and Insights.
1.6 “Customer Courses” are courses that Customer may create using its own content or license from third parties and upload such content to their Customer Account for use by their Users.
1.7 “Customer Personal Data” includes the personal data (as defined by applicable law) that Customer, Administrator or User enters into or delivers to ThirdA as necessary to access ThirdA.
1.8 “Insights” means the functionality which allows an Administrator to access reporting on User adoption, course consumption, and User activity.
1.9 “Marketplace Courses” are those courses that ThirdA generally offers on the Site, but which are not offered as Subscription Courses, but may be added to the Customer Account separately by Customer as set forth in Section 7.
1.10 “Order Form” means an ordering document (whether online or otherwise) entered into by ThirdA and Customer, which is incorporated into this Agreement, and specifies the services to be provided by ThirdA and the fees related thereto. By entering into an Order Form hereunder, an Affiliate of either party agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.11 “Privacy Statement” means the ThirdA Privacy Statement located at https://www.ThirdA.com/terms/ThirdA-privacy/.
1.12 “Reporting API” is an application programming interface that allows Customer to access certain information relating to the Customer and its Users’ use of ThirdA and the Customer Account such as completion.
1.13 “Site” means ThirdA’s website located at www.ThirdA.com, on which ThirdA offers various online courses and related services.
1.14 “SSO” or “Single Sign-On” is a capability, which enables Users to log in to ThirdA without the need to disclose user passwords to ThirdA.
1.15 “Subscription Courses” are courses offered by ThirdA as part of ThirdA that Users will be able to access upon Customer’s payment of the Subscription Fees and set-up of the Customer Account.
1.16 “Subscription Fees” are the fees charged to a Customer by ThirdA for access to ThirdA on a per seat basis.
1.17 “ThirdA” refers to ThirdA for Business or ThirdA for Government, ThirdA’s proprietary services that permit Customer to, among other things:
(a) configure their Customer Account;
(b) invite new Users;
(c) assign Users into groups;
(d) assign courses to individuals or groups;
(e) access Subscription Courses;
(f) elect which Marketplace Courses to add to their Customer Account, if any;
(g) upload Customer Courses and make Customer Courses available for Users;
(h) invite Users to access and enroll in courses;
(i) allow Administrators access the ThirdA Administrator Tools; and
(j) access to Single Sign-On, Course API, and Reporting API.
1.18 “ThirdA Administrator Tools” means the functionality made available to an Administrator that may be used to: add and remove Users, assign Users to groups, assign names to such groups, view User course consumption and activity, run and export reports of such consumption and activity, and run other reporting features of ThirdA that ThirdA may make available to Customer from time to time.
1.19 “Users” means the employees and contractors (including Administrators) Customer authorizes to access and use the Customer Account.
2. Customer Account. Customer shall select a unique URL identifier for the Customer Account. Customer will appoint at least one Administrator, who will be responsible for the configuration of the Customer Account, set up User accounts and run reports via Insights. Customer, Administrator and Users shall be responsible for maintaining the security of passwords. ThirdA may, in its sole discretion, offer certain localized or translated Subscription Courses or Marketplace Courses in non-English languages. Subscription Courses and Marketplace Courses are available only so long as: (a) Customer continues to pay the Subscription Fees; and (b) ThirdA continues to have the legal right to offer such Subscription Courses or Marketplace Courses. From time to time, ThirdA may need to remove Subscription Courses or Marketplace Courses from Customer Account. In those circumstances, ThirdA will: i) use its best efforts to secure from the instructor a transition period and the right for enrolled Users to continue to access such courses during such transition period, and ii) endeavor to give notice of such a transition as far in advance as possible. Upon termination of this Agreement, Users will no longer have access to any Subscription Courses or Marketplace Courses.
3. Customer Courses. In the event that Customer creates and uploads Customer Courses, Customer represents that it shall own or have the necessary licenses, rights, consents, and permissions, and the authority to authorize ThirdA, to display and use the Customer Courses on and through the Customer Account in the manner contemplated hereunder.
4. License to the Site, ThirdA and the Customer Account. Subject to the terms and conditions of this Agreement, ThirdA grants to Customer and its Affiliates, exercisable by and through its Users, a limited, nonexclusive, royalty-free, revocable (for breach), nontransferable, and non-sublicensable, right and license during the term of this Agreement to access ThirdA for the purpose of creating a Customer Account, and provisioning access to the Customer Account to Users. For avoidance of doubt, this Agreement shall only apply to Customer’s and its Users’ use of ThirdA, and shall not apply to any other offerings available on the Site. Unless Customer has elected to include the Single Sign-On capability, Users will access the Customer Account by logging in through the Customer Account. In all of its activities under this Agreement, Customer assumes full responsibility for its Administrators’, Users’ and Affiliates’ compliance with the terms and conditions of this Agreement and for securing any necessary consents from its Users to access and use their personal information and for ensuring that such access and use conforms with applicable laws, including, without limitation, privacy laws.
5.1 In the course of all of its activities under this Agreement, Customer shall not permit its Users or any third party under its control to:
(a) copy, distribute, modify, or hack ThirdA, the Site, or any Subscription Courses or Marketplace Courses;
(b) introduce any computer code, file or program that may damage or hijack the operation of any aspect of ThirdA;
(c) scrape, spider, or other automated means of any kind to access ThirdA such as accessing API endpoints for which User has not been provided authorization by ThirdA, the Customer Account or Subscription or Marketplace Courses other than as expressly authorized by ThirdA;
(d) access or use ThirdA for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service;
(e) use ThirdA or any courses for any purpose or in any manner that is unlawful or that infringes the rights of others;
(f) post or provide any inappropriate, offensive, racist, hateful, sexist, pornographic, defamatory or libelous content or information through ThirdA;
(g) solicit personal information from any instructor or other student;
(h) frame or embed the Customer Account or any Subscription Courses or Marketplace Courses;
(i) transmit any unsolicited or unauthorized promotional materials, spam, or any other form of solicitation (commercial or otherwise) through ThirdA; and/or
(j) share login access to ThirdA among multiple individuals or otherwise permit third parties other than Users to access or use the Customer Account or Subscription Courses or Marketplace Courses.
In the event that ThirdA determines that any User has violated the restrictions set forth in this Section 5.1, ThirdA reserves the right to terminate or suspend access to ThirdA for such User.
5.2 Customer represents to ThirdA that all Users shall be Customer’s employees or contractors. Customer may not assign or transfer User access from one person to another except in connection with a change of job assignment or termination of employment.
5.3 Certain features of ThirdA are not available for Customers on the ThirdA for Business Team Plan, including but not limited to: the ability to assign Users into groups or otherwise use the groups functionality, add Marketplace Courses into their Customer Account, assign courses to individuals or groups, utilize any Optional Features, or access any of the functionality in Insights.
5.4 Customer represents and warrants that all Users will be at least 13 years old.
6. Instructor Interactions. As a marketplace for online learning, ThirdA does not hire or employ instructors to create Subscription Courses or Marketplace Courses. ThirdA disclaims responsibility or liability for any interactions between Users and the instructors of either Subscription Courses or Marketplace Courses. ThirdA is not responsible for disputes, claims, losses, injuries, or damage of any kind that might arise out of or relate to conduct of instructors or Users, including, but not limited to, any User's reliance upon any information provided by an instructor. ThirdA disclaims any liability from any injuries that may occur arising from a User’s participation in any fitness, health, or wellness courses available on ThirdA. ThirdA does not control any third party content accessible on the Site or through ThirdA and, as such, does not guarantee in any manner the reliability, validity, accuracy or truthfulness of such third party content. Customer also understands that by using the ThirdA services, ThirdA may expose Users to third party content that Customer or its Users consider offensive, indecent, or objectionable. ThirdA has no responsibility to keep such content from Customer or its Users and ThirdA has no liability to Customer’s or its Users’ access or use of any third party content, to the extent permissible under applicable law.
7. Marketplace Courses. With the exception of ThirdA for Business Team Plan, Administrators may, at any time, elect to add Marketplace Courses to the Customer Account by using the functionality available in the Customer Account. Customer is under no obligation to add Marketplace Courses to the Customer Account. Customer acknowledges that Marketplace Courses are not provided as part of ThirdA or as Subscription Courses, and may be subject to separate fees in addition to the Subscription Fees.
8. Fees and Payment. Customer will pay ThirdA the Subscription Fees as set forth in the Order Form(s) (whether online or otherwise). All fees shall be paid in US dollars and are non-refundable. Late payments shall be subject to the greater of 1.5% interest per month and the maximum permitted by law, and all third-party collection costs. Customer shall be responsible for any sales, value-added, services, use or similar taxes (other than taxes on ThirdA’s income). Further, Customer shall pay all sums payable by it under this Agreement free and clear of all deductions or withholdings or rights of counter claim or set off unless required by law. If a deduction or withholding is so required, and except in the case of interest payments, Customer shall pay such additional amount as will ensure that the net amount received and retained by ThirdA equals the full amount which it would have received had the deduction or withholding not been required.
9. Confidentiality. Customer acknowledges that, in the course of activities under this Agreement, Customer will obtain information relating to ThirdA and ThirdA which is confidential in nature (“ThirdA Confidential Information”), including, but not limited to, ThirdA, and any related features, software, pricing details, and other information about ThirdA and ThirdA’s operation. ThirdA acknowledges that it may obtain Confidential Information relating to Customer, including, but not limited to Customer Personal Data and Customer Courses (“Customer Confidential Information”) (ThirdA Confidential Information and Customer Confidential Information shall be collectively known as “Confidential Information”). Customer agrees that any product suggestions sent by Customer and its Users to ThirdA shall not be considered Customer Confidential Information. During the term of this Agreement, and five years thereafter, and except as necessary to perform its obligations hereunder or as permitted under the Privacy Statement, each party (“Recipient”) agrees that it will not disclose Confidential Information of the other party (“Discloser”) without the prior written consent of Discloser unless such Confidential Information becomes part of the public domain through no fault of the Recipient, and that it will only use such Confidential Information for the purposes of this Agreement and in accordance with the Privacy Statement and applicable law. Each party acknowledges and agrees that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of this section, and the Discloser shall be entitled to seek equitable relief in addition to whatever remedies it may have at law. Nothing in this Agreement is intended to limit either party from accessing or making available similar services or courses, including, without limitation, Customer’s (or Customer’s Users’ or employees’) use of another online education site, or ThirdA from offering Users the opportunity to enroll in courses other than the courses available on the Customer Account. In the event that ThirdA processes Customer Personal Data of individuals in the European Economic Area, the parties will execute ThirdA’s Data Processing Addendum to govern such processing.
10. Term/Termination. The Agreement will commence as of the Effective Date and will continue until all Order Forms hereunder have expired or have been terminated. The initial term of each subscription shall be as specified in the applicable Order Form (the “Initial Term”). Except as otherwise specified in an applicable Order Form, and with the exception of Customers on the ThirdA For Business Team plan that have disabled auto-renewal on their Customer Accounts, subscriptions will renew automatically for additional terms of one (1) year until terminated by at least thirty (30) days’ notice prior to the end of the then-current term. Either party may terminate the Agreement upon thirty (30) days’ notice for a material breach unless such breach is cured during such thirty (30) day notice period. Upon termination for any reason, Customer will cease to use the Customer Account, ThirdA and any Subscription Courses or Marketplace Courses, and each party will cease to use the other’s Confidential Information. Sections 5-17 of this Agreement, as well as any accrued rights to payment, will survive any expiration or termination.
11. WARRANTY DISCLAIMER. ThirdA PROVIDES ThirdA, THE 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.
12. 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 SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO ThirdA 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 5.1(a)-(e), OR UNDER THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT. FURTHERMORE, EACH PARTY’S LIABILITY ARISING FROM BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER SHALL BE LIMITED TO THREE (3) TIMES THE AMOUNT OF SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO ThirdA IN THE TWELVE (12) MONTHS PRIOR TO THE DATE A CLAIM AROSE. CUSTOMER’S LIABILITY ARISING FROM ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT BE LIMITED.
13.1 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.” ThirdA and the Site shall be “ThirdA’s Content.” The content Customer enters into the Customer Account (including Customer’s chosen URL identifier for the Customer Account), Customer Courses and Customer Personal Data shall be “Customer Content.” Content created by third parties shall not be either party’s Content. Customer agrees to defend and indemnify ThirdA for any and all third party claims, allegations, infringements, investigations, losses, damages and fees (including court costs and all attorneys’ fees), without the right of apportionment arising from or relating in any way to (i) a breach by Customer of the restrictions in Section 5.1(e)-(g) of this Agreement, or (ii) infringement of any intellectual property rights of a third party by the Customer Content. ThirdA agrees to defend and indemnify Customer for any and all third party claims, allegations, infringements, investigations, losses, damages and fees (including court costs and all attorneys’ fee arising from or relating in any way to: (i) infringement of any intellectual property rights of a third party by ThirdA’s Content; or (ii) the Subscription Courses or Marketplace Courses in the event that ThirdA fails to remove access to such Subscription Courses or Marketplace Courses promptly after receiving notification that such materials may infringe third party rights or contain harmful or inaccurate information in accordance with applicable laws. In the event that ThirdA becomes subject to a third-party intellectual property claim or ThirdA believes it will become subject to such a claim, ThirdA may elect to (i) defend or settle the claim; (ii) procure the right for Customer to continue to use ThirdA without material reduction in functionality; (iii) modify ThirdA to preclude the claim; or (iv) terminate this Agreement and refund pro rata for the remainder of the then-current term any prepaid fees.
13.2 No duty provided under this Section 13 will apply unless and until an indemnified party (a) promptly tenders a claim for indemnification; (b) allows the indemnifying party sole control of the defense or settlement of the underlying claim; and (c) reasonably assists with any defense or settlement of the underlying claim at the indemnifying party’s request and expense. THE PROVISIONS OF THIS SECTION 13 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF ThirdA TO CUSTOMER WITH RESPECT TO A CLAIM THAT ThirdA’S CONTENT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
14. Export Compliance. The Site, ThirdA, ThirdA Administrator Tools, Insights, and any other ThirdA technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that neither it nor any of its Users are named on any U.S. government denied-party list. Customer shall not permit any User to access or use any Site, ThirdA, ThirdA Administrator Tools, and any other ThirdA technology in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
15. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from a ThirdA employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it shall use reasonable efforts to promptly notify ThirdA’s Legal Department at legal@ThirdA.com.
16. Publicity. ThirdA may include Customer in a list of customers and identify that Customer is a user of ThirdA, post Customer’s name and logo on its website, and, with Customer’s consent, in promotional materials, subject to Customer’s usage standards.
17. Miscellaneous. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. This Agreement, or any part thereof, may be modified by ThirdA, including the additional or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Customer or its Users continued use of ThirdA will be deemed to constitute acceptance by Customer of such modifications, additions, or deletions. This Agreement and any mutually executed Order Forms shall apply in lieu of the terms or conditions in any purchase order or other documentation that Customer provides, and all such terms and conditions are null and void and superseded by this Agreement and any mutually executed Order Forms. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect. 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. A party shall not be held liable for failure of, or delay in, performing its obligations under this Agreement if such failure or delay is the result of an act of God, such as due to a natural disaster, in the case of war breaking out, action of foreign enemies, terrorist activities, labor dispute or strike, government sanction, blockage, embargo, or failure of electrical service. 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.