License Agreement & Data Processing Agreement

License Agreement

 This License Agreement is a contract between the Company and the Contractor on the LEARNINGSUITE Platform. A business is considered a Contractor when They create an account and accept these terms. Only registered companies can become Contractor in the scope of this Agreement.

1.    Introduction

SeekInnovation GmbH provides an online content creation platform, LearningSuite, designed to allow the Contractor to build, design and publish courses and services ("Content") to Their Users. The entire selection of tools and services offered via the Platform will be referred to in this Agreement as "Services".

The Company is neither a content provider nor an educational institution. The Contractor and Users are not employees of the Company. The Company is not responsible for interactions between a Contractor and Users, with the exception of providing the technological means through which Contractors make Their Content available. The Company is not liable for any disputes, claims, losses, injuries, or damage of any kind that may arise out of the Contractor/User relationship, including but not limited to, any User’s reliance upon any information provided by the Contractor or a Contractors Content at any time. 

 

2.    Information about Us

The Site LearningSuite.io and Our Platform (“LearningSuite”) is owned and operated by

SeekInnovation GmbH
Neubaugasse 24
8020 Graz
Austria

 

Registered address: FN 556105 b
VAT number:
  ATU 769 60 549
Email-address:
office@seekinnovation.at​

 

3.    Trademark

SeekInnovation GmbH is the sole owner of the registered trademark “LearningSuite” with the register number 18622707.

 

4.    Interpretation and definitions

4.1.  Interpretation

The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether They appear in singular or in plural.

4.2.  Definitions

For the purposes of this License Agreement:

●  "Agreement" means this License Agreement that forms the entire agreement between the Company and the Contractor regarding the use of the Platform.

●  "Company" (referred to as either "the Company", "We", "Us" or "Our" in this Agreement) refers to SeekInnovation GmbH.

●  "Platform" means the Site and Product named LEARNINGSUITE, operated by the Company.

●  "Content" refers to content such as text, images, or other information that can be posted, uploaded, linked to or otherwise made available by the Contractor, regardless of the form of that content.

●  "Device" means any device that can access the Platform including – but not limited to – computers, cellphones, or digital tablets.

●  "Contractor" (referred to as either “the Contractor”, “They”, “Their” in this Agreement) is the business that is party to this License Agreement. 

●  “Profile” refers to the Contractors account on the Platform.

●  “User” refers to the individuals, that the Contractor adds to Their Profile.

●  “Subscription” refers to a subscription to the Platform.

●  “Website” refers to the domain or subdomain of LearningSuite.io or a domain or subdomain provided by the Contractor.

5.    Acceptance of terms

5.1.  The Company provides its Service to the Contractor through its Website.

5.2.  By signing this Agreement, the Contractor acknowledges that They have read, understood, and agreed to be bound by the following terms and that all materials made or used by the Contractor on Website are within the Contractors rights to make.

6.    Access and changes to Our platform

6.1.  Access to Our Platform and the creation of Content require a Subscription. Upon purchasing a Subscription, Our Platform will be available to the Contractor, and Their User(s), for the duration of that Subscription and any and all subsequent renewals. This is only applicable, if all necessary payments are successful and the Subscription amount is registered on the Companies accounts.

6.2.  We may make changes to Our Platform from time to time:

·  Minor changes may be required to make underlying technical alterations, for example, to fix an error or to address a security issue. We will inform the Contractor if necessary of important such changes (including, if applicable, anything that the Contractor needs to do), however They will be unlikely to materially affect the Contractors use of Our Platform or the availability of the Contractors Content; 

·  Minor changes may be made to reflect changes in the law or other regulatory requirements. We will inform the Contractor if necessary of important changes (including, if applicable, anything that the Contractor needs to do), however They will be unlikely to materially affect the Contractors use of Our Platform or the availability of Their Content; and

·  We will continue to develop and improve Our Platform over time, in some cases making significant changes to it. The Contractor will be kept fully informed of any and all such changes in the change log.

 

6.3.  Although we work with most trusted Partners and Service Providers technical problems may occur. We will do our best to find solutions as fast as possible but we take no responsibility for such incidents.

6.4.  We will always aim to ensure that Our Platform and the Contractors Content are available at all times. In certain limited cases, however, We may need to temporarily suspend availability to make certain changes outlined under sub-Clause 6.2. Unless We are responding to an emergency or an urgent issue, We will inform the Contractor in advance of any interruptions to availability. If We need to suspend Our Platform and/or the availability of the Contractors Content for longer than 12 hours within a 24-hour period, We will add the corresponding time to the duration of the Contractors current Subscription period at no cost to the Contractor, rounded up to a full day in each case.

 

7.    Subscription, subscription terms and payment

7.1.  Subscription and subscription terms

A single Subscription can only be used by one person and is concluded indefinite period of time. The Contractor and the Users are not allowed to share the account or Their account details with other entities. Sharing of Content can only be done by the Contractor by adding Users to Their Content.

It is not permitted to make screenshots, screen captures, videos, photos, copies, saves of the Content or to copy the content by any other means.

A Subscription to our platform allows the Contractor to create and design Content and share them with the Users, that They have added to Their Profile.

 

7.2.  Payment

We operate two different payment levels that are both implemented and described hereinafter: 

7.2.1. Basic Subscription Fee: We charge a monthly flat rate for the Subscription to our platform, according to the officially published pricelist on Our Website on the date of the signature plus any applicable VAT. The Subscription renews automatically unless the Contractor cancels the by the end of the current month.

7.2.2. Per Seat Fee: In addition to the monthly flat rate for the Subscription the Contractor pays a fixed per capita amount each day for each User added to Their Profile. This prices according to the officially published pricelist on Our Website on the date of the signature plus any applicable VAT per day and capita. User based roles can be cancelled daily and are billed monthly. Days start at midnight and are counted as whole days. Months are calculated with 30 days. 

7.2.3. Paused Subscriptions: If a Subscriptions is paused (7.9) we charge 20 % of the regular basic subscription prices (6.2.1) on nothing for User Subscriptions (6.2.2).

 

7.3.  Payment methods

Paypal, stripe, invoice, sepa

The list of payment methods is demonstrative and can be altered by us anytime.

 

8.    General conditions

8.1.  The Contractor agrees not to license, resell, lease, transfer or distribute the Service to any third-party vendors. Exceptions need the written approval of the Company prior to any actions.

8.2.  The Contractor agrees not to use Platform for unlawful purposes, such as infringing privacy, data ownership, or intellectual property rights.

8.3.  As a Contractor to the Platform, it is acknowledged that the Company is the proprietor of the software, and that the Contractor does not have the right to adapt, hack, or reverse engineer the source code of the software.

8.4.  The Contractor is responsible for the data stored in Their Platform account, and for all data, sent or published from Their Platform account. The Company cannot take responsibility for any racist, libel or defamatory messages of any kind sent or published from the Contractors Platform account, and the Contractor indemnifies the Company from any damages relating to such an occurrence.

8.5.  The Contractor agrees to keep Their login information confidential, and to restrict each login to one person. The Contractor is not allowed to share a single (named) User account with other people.

8.6.  The Company reserves the right to cancel the account of the Contractor immediately, and without warning, if the Contractor infringes the above terms. If, at Our sole discretion, We determine the Contractor has abused Their access rights to the Platform termination without warning will take effect immediately. The Company shall wherever possible seek to contact the Contractor in advance allowing the Contractor a reasonable opportunity to remedy.

8.7.  The Contractor may not upload, post, or transmit (collectively, “submit”) any video, image, text, audio recording, or other work (collectively, “content”) that:

·  Infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.);

·  Contains sexually explicit content or pornography (provided, however, that non-sexual nudity is permitted);

·  Contains hateful, defamatory, or discriminatory content or incites hatred against any individual or group;

·  Exploits minors;

·  Depicts unlawful acts or extreme violence;

·  Depicts animal cruelty or extreme violence towards animals;

·  Promotes fraudulent or dubious business schemes;

·  or violates applicable law or etiquette.

8.8.  The Company has the right to remove content without notification if the Contractor and associated Users upload content that contradicts these rules.

8.9.  The Contractor is allowed to pause his subscription for an indefinite period of time. Each paused month is charged.

8.10.   The Contractors mutation of the Platform and it’s content is stored for a period of six months starting from the day the Subscription has been canceled by Us or the Contractor and can be reactivated within this time. The content and associated information will be deleted thereafter.

9.    Copyrights

9.1.  Intellectual property rights on the software. The Company shall maintain all rights, title, and interest in Our respective patents, inventions, copyrights, trademarks, domain names, and any other intellectual or property and/or proprietary rights. The rights granted to the Contractor to use the Service do not convey, by extension, any title to patents, inventions, copyrights, trademarks, domains name or any other intellectual property owned by Us.

9.2.  The copyright for all Content created with the Platform lies with the Contractor.

9.3.  The Company reserves the right to use Content, that does not include critical business information or personal data, to use for marketing purposes and reference material.

10. Data privacy

10.1.   In providing the Contractor with the Platform and the service, the Company shall maintain all administrative and technical safeguards to protect the security, confidentiality, and integrity of your data.

10.2.   The Company will only access the Contractors account upon Their request for technical assistance. The Contractor will be asked to provide explicit consent each time an employee of Us needs to access your account. No employee of the Company will access the Contractors account without prior permission unless required to do so by law and in such cases, where legally permissible, the Company shall inform the Contractor.

10.3.   The Company does have the right to analyse this data for general trends and figures, but not on a personal or the Contractors level unless the Contractor has approved or requested that.

For further information on Our Privacy Policy see under [LINK].

 

11. Limitation of liability

11.1.   No consequential damages. Under no circumstances and under no legal theory (whether in Agreement, negligence or otherwise) will either Party to these terms, or such Party’s affiliates or Their respective officers, directors, employees, agents, suppliers or licensors be liable to the other Party or any third party for any indirect, incidental, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, business interruption or any other loss incurred by such Party in connection with these terms or the Service.

11.2.   Limits on monetary damages. Notwithstanding anything to the contrary in these terms, the Company and Contractor (including any of its affiliates) aggregate liability, for damages (monetary or otherwise) under these terms claimed by the Contractor or any third party arising from Our Service, shall be limited to the lesser of (i) actual damages incurred, or (ii) 100% of the payments paid or payable by the Contractor for the Service during the twelve (12) months preceding the claim, or the duration of the current term. Parties acknowledge and agree that the essential purpose is to allocate the risks under these terms between Parties and limit Their potential liability given the fees charged under this Agreement, which would have been substantially higher if the Company were to assume any further liability other than as set forth herein. The Parties have relied on these limitations in determining whether to enter into these terms.

11.3.   Breach of confidentiality, data privacy and third-party intellectual property infringement shall be uncapped for both Parties.

12. Indemnification

12.1.   Indemnification by the Company

The Company will indemnify and hold the Contractor harmless, from and against any claim against Them by reason of Their use of the Platform as permitted hereunder, brought by a third party alleging that the Platform infringes a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). The Company shall, at its expense, defend such Claim and pay damages agreed or finally awarded against the Contractor in connection therewith, including the reasonable fees and expenses of the attorneys engaged by the Company for such defence, provided that

(i) the Contractor promptly notifies the Company of the threat or notice of such Claim,

(ii) The Company will have the sole and exclusive control and authority to select defence attorneys, defend and/or settle any such Claim, and

(iii) the Contractor fully cooperates with the Company in connection therewith.

If the Contractors use of the Platform has become, or in Our opinion is likely to become, the subject of any such Claim, We will replace or modify the Service to make it non-infringing by modification of the Platform by anyone other than the Company.

12.2.   Indemnification by the Contractor

The Contractor agrees to defend, indemnify, and hold harmless the Company from and against any claims, actions or demands, including, reasonable legal and professional Services fees, arising or resulting from Their breach of these Terms, or Their and Their Users’ access to, use, misuse or illegal use of the Service. The Company will provide You notice of any such claim, suit, or proceeding.

The Company reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist Our defence of such matter.

13. Relationship of the Parties

The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship among the Parties.

14. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect.

15. Assignment; entire Agreement; revisions

Giving prior written notice to the other Party, either Party may assign or transfer the Agreement, in whole or in part, without restriction, provided the assignee agree to be fully bound by the terms of this Agreement. The Agreement supersedes any other discussions, prior versions of Agreements or understandings by or among the Parties (other than written Agreements expressly accepted and executed by both Parties). We may amend this License Agreement from time to time, in which case the new terms will supersede prior versions provided such changes do not materially reduce the Services delivered to the Contractor. The Contractor will be informed of the new License Agreement in writing.

16. Governing law and dispute resolution

This Agreement shall be governed by and construed in accordance with the laws of Austria. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. If the arbitration fails the all disputes shall be finally settled by the competent court in Graz.

17. No Other Rights

No other rights or licenses are granted under this Agreement, by implication, estoppel, statute or otherwise, except as expressly provided herein.

18. Signing

This license Agreement takes affect by clicking “I Agree” on the registration screen of Our Website. It will be sent to the Contractor by email. 

Data Processing Agreement

This Data Processing Agreement (“Agreement“) forms part of the License Agreement (“Principal Agreement“) between the Contractor from the above license agreement, further the Company, and SeekInnovation GmbH referred as “Data Processor”, together as the “Parties”.

WHEREAS

(A) The Company acts as a Data Controller.

(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.

(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

(D) The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:

1.    Definitions and Interpretation

1.1.  Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

1.1.1. “Agreement” means this Data Processing Agreement and all Schedules; 

1.1.2. “Platform Data” means any Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

1.1.3. “Contracted Processor” means a Subprocessor;

1.1.4. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.5. “EEA” means the European Economic Area;

1.1.6. “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.7. “GDPR” means EU General Data Protection Regulation 2016/679; 

1.1.8. “Data Transfer” means: 

1.1.8.1 a transfer of Platform Data from the Company to a Contracted Processor; or

1.1.8.2 an onward transfer of Platform Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

1.1.9. “Services” means the Platform the Company provides.

1.1.10.  “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

 

1.2.  The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2.    Processing of Platform Data

2.1.  Processor shall:

2.1.1. comply with all applicable Data Protection Laws in the Processing of Platform Data; and

2.1.2. not Process Platform Data other than on the relevant Company’s documented instructions. 

2.2.  The Company instructs Processor to process Platform Data.

3.    Processor Personnel

Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Platform Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Platform Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4.    Security

4.1.  Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Platform Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2.  In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5.    Subprocessing

5.1.  Processor is allowed to appoint and disclose any Data any Subprocessor required to fulfil his obligations.

6.    Data Subject Rights

6.1.  Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2.  Processor shall:

6.2.1. promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Platform Data; and

6.2.2. ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

7.    Personal Data Breach

7.1.  Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Platform Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2.  Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8.    Data Protection Impact Assessment and Prior Consultation Processor

Data Protection Impact Assessment and Prior Consultation Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Platform Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

 

9.    Deletion or return of Platform Data

9.1.  Subject to this section 9 Processor shall promptly and in any event within 10 Business Days business days of the date of cessation of any Services involving the Processing of Platform Data (the “Cessation Date”), delete and procure the deletion of all copies of those Platform Data.

10. Audit rights

10.1.   The Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Platform Data by the Contracted Processors.

10.2.   Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1.   The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

12. General Terms

12.1.   Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

a disclosure is required by law or the relevant information is already in the public domain.

12.2.   Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

13. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Austria. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. If the arbitration fails the all disputes shall be finally settled by the competent court in Graz.