Enterprise Terms and Conditions
Last Updated: November 20, 2023
This LEARNQ Business Agreement governs your organization’s use of the Services. “Us”, “our”, and “we” refers to LearnQ, Inc. and its subsidiaries, and “Customer” or “you” refers to the organization governed by these terms. By clicking "I agree" or “Purchase” (or a button or link with a similar meaning), signing your Order, or using the Services, you are agreeing to this agreement on behalf of your organization.
If a Customer's Order contains additional terms and conditions, then those terms override these terms to the extent they conflict.
1. Provision of the Services to Customer
1.1 Right to Use the Services and Software. During the Subscription Term, (a) we will provide the Services to Customer, (b) we grant Customer the right to use the Services subject to this agreement, and (c) we grant Customer the right to use any software provided by us to access the Services in accordance with the Documentation, all subject to the terms of this agreement.
1.2 Restrictions on the Right to Use the Services. Customer may only use the Services (a) for its internal business purposes and (b) in accordance with this Agreement.
1.3 Access for End Users; Responsibility for End Users. Customer may assign End Users to use the Services. End Users may be employees or students of Customer or its Affiliates who are using the Services solely pursuant to their engagement with the Customer or its Affiliates. Customer will obtain and maintain from End Users any consents necessary to allow us to deliver the Services. End User accounts may only be used by a single End User, and may not be shared by multiple individuals. The End Users shall be bound by the terms and conditions of the Services accessible at www.learnq.ai/terms-conditions and the privacy policy accessible at www.learnq.ai/privacy-policy in their use of the Services.
1.4 Service-Specific Terms. To the extent there are any Service-Specific Terms applicable to Customer’s use of the Services, those are incorporated by reference into this agreement.
1.5 Changes to the Services. We may make changes to features and functionality of the Services during the Subscription Term. If we make a change to the Services that has a material adverse effect on the functionality of the Services, taken as a whole, we will notify Customer in advance.
1.6 No Liability for Third-Party Platforms. Customer’s use of a Third-Party Platform with the Services is governed by Customer’s agreement with the provider of the Third-Party Platform, not this agreement, and we are not responsible for Third-Party Platforms.
1.7 Age Requirement. The Services are meant only for the use of persons above the age 18 (eighteen). You shall obtain parental consent in the event You allow any End User under the age of 18 (eighteen) to access the Services prior to allowing such End Users to use any of the Services. You shall ensure that such End User shall be enrolled to the Services by the parent/guardian of such End User and that such End User shall use the Platform under the guidance and supervision of such parent/guardian.
2. Payment Terms
2.1 Fees. Customer will pay the fees for the Services (“Fees”) described in the Order, in US dollars (unless otherwise specified in the Order). All Fees are non-refundable except as required by law or expressly set out in this agreement.
2.2 Payment Timing. The payment timing is described in Customer's Order. If the payment timing is not specified in Customer’s Order, Customer will pay all Fees within thirty days of when Customer receives an invoice. Late payments are subject to a service charge of the lesser of 1.5% per month or the maximum amount allowed by law.
2.3 Taxes.If there are any government-imposed sales, value-added, delivery, withholding, or similar taxes associated with your purchase of the Services (but not taxes based on our net income, net worth, asset value, property value, or employment), you will pay such taxes.
2.4 Notice of Fee Changes Prior to Renewal; Notice of Corrections. In the event we change Customer's Fees, we will give Customer at least thirty days’ notice of that change prior to the renewal of Customer's then-current subscription. If Customer believes we have incorrectly billed Customer, Customer has sixty days from receipt of an invoice to notify us of the error.
2.5 Cancellations. You may cancel your subscription and that cancellation will take effect at the end of the then-current subscription (for example, if you are on a paid monthly subscription, the cancellation will take effect the following month, but if you are on a paid yearly subscription, the cancellation will take effect the following year).
3. Protection of Customer Data
3.1 Security. We maintain industry-standard security and privacy certification, such as a SOC II certification. We will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data and System Data.
3.2 Data Retention. Upon termination or expiration of this agreement, LearnQ will, at the choice and written request of Customer, delete any Customer Data in its possession within a commercially reasonable time, unless we’re required by law to retain it or permitted by the End-Users to retain in accordance with our End-User Terms of Service. We may make instructions available to Customer regarding how to submit such a request. Customer is responsible for following these instructions to request the deletion of Customer Data.
4. Confidentiality
4.1 Restrictions on Use and Disclosure of Confidential Information. The recipient of Confidential Information will only use the disclosing party's Confidential Information to exercise its rights and fulfill its obligations under this agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this agreement.
4.2 Required Disclosure. The recipient may disclose Confidential Information to the extent required by applicable Legal Process if the recipient uses commercially reasonable efforts to (a) promptly notify the other party of such disclosure before disclosing, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure, in each case, if doing so is consistent with the Legal Process and doesn’t obstruct a governmental investigation.
5. Intellectual Property Rights
5.1 Reservation of Intellectual Property Rights. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and we own all Intellectual Property Rights in the Services and in System Data. Except as expressly stated, this agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property.
5.2 Right to Use Customer Data. Customer grants us the right to use Customer Data during the Subscription Term to provide and protect the Services, as well as to diagnose problems.
5.3 Machine Learning for Product Improvement. Customer acknowledges that a fundamental component of the Service is the use of machine learning for the purpose of providing and improving our products and services. Customer hereby grants us the right to use, during and after the Subscription Term, aggregated and anonymized Customer Data to improve the Services, including to train our algorithms internally through machine learning techniques.
5.4 Feedback. If Customer or its End Users provide us with feedback about any of our products or services (including the Services), we may use that feedback without restriction or obligation to Customer, and Customer hereby assigns all rights, title, and interest in such feedback to us.
5.5 Customer Reference. We may use Customer's name, logo, and marks to identify Customer as our customer on our website and in other marketing materials and activities, subject to any brand guidelines provided by Customer to us in writing. Upon Customer’s written request, we will promptly remove any such marks from our website and, to the extent commercially feasible, our marketing materials.
6. Customer Obligations
6.1 Terminate Unauthorized Use. Customer will use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and promptly notify us of any unauthorized use of, or access to, the Services of which Customer becomes aware.
6.2 Provide Privacy Notices. Customer is responsible for providing any required privacy consents and notices for using the Services.
6.3 Compliance with Laws; Export Compliance. Customer (a) will comply with all export and import laws in performing this agreement and (b) represents and warrants that it is not listed on any US government list of prohibited or restricted parties or located in (or a national of) a country subject to a US government embargo or designated by the US government as a “terrorist supporting” country. Customer will not submit to the Services any data controlled under the US International Traffic in Arms Regulations.
6.4 Third Party Administration. Customer acknowledges that, if Customer purchases the Services through a reseller and designates any of the reseller's personnel as administrators of Customer's Services account, the reseller may be able to control account information, including Customer Data, and access Customer's Services account.
7. Term, Termination, and Suspension
7.1 Subscription Term; Agreement Term. The “Subscription Term” of Customer’s subscription will begin on the date specified on the applicable Order and will continue until Customer's subscription ends or is terminated. This agreement starts on the Effective Date and continues until the end of all Subscription Terms, unless it is terminated sooner.
7.2 Automatic Renewal. Customer's Subscription Term will automatically renew for successive periods unless either party gives the other notice of its intent not to renew. That notice must be given at least thirty days before the start of the next renewal period.
7.3 Termination. Either party may terminate this agreement if (a) the other party materially breaches this agreement and fails to cure that breach within thirty days after receipt of a written notice of the breach, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. LearnQ may terminate this agreement and suspend Customer’s access to the Services if required to do so by law.
7.4 Suspension. We may suspend Customer's access to the Services if:
(a) Customer's use of the Services poses a risk to the Services, our other customers, or us (including our infrastructure, security, and third-party relationships);
(b) Customer's use of the Services could subject us to liability;
(c) Customer’s payment of Fees is late; or
(d) Customer is otherwise in breach of this agreement.
We will provide Customer with prompt notice of any suspension.
7.5 No Cancellation. Customer can’t end Customer's subscription early except as expressly permitted in this agreement.
7.6 Effect of Termination. When this agreement terminates, Customer will no longer have access to the Services and we may elect in our discretion to (a) terminate Customer’s Users’ accounts or (b) downgrade Customer’s Users’ accounts to individual subscriber accounts. All sections of this agreement that should survive termination will do so, including the confidentiality obligations, limitation of liability, and disclaimers.
8. Disclaimer
8.1 Disclaimer about the Services. Except as expressly stated in this agreement, to the fullest extent permitted by law, we, our Affiliates, and our suppliers (a) do not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, noninfringement, or error-free or uninterrupted use of the Services; (b) make no representation about the content or information accessible through the Services; and (c) do not warrant that the operation of the Services will meet your requirements.
8.2 Beta Services. Sometimes we create new service offerings that are still in development. If we do so, we will mark those services as “alpha”, “beta”, “early access” or something similar. Customer may choose to use these beta services in its sole discretion. We may not support these beta services, we may change them at any time, and they may not be as secure or reliable as our other Services. Customer will treat the beta services and any related documentation as Confidential Information until we officially launch the beta services. Notwithstanding anything else in this Agreement, we will have no liability arising out of or in connection with these beta services.
9. Limitation of Liability
9.1 Limitation on Liability Amount. Subject to Section 9.3 (Unlimited Liabilities), each party's total aggregate Liability arising out of or relating to this agreement is limited to the Fees Customer paid during the twelve-month period before the event giving rise to Liability (unless that amount is zero due to Customer participating in a free trial, in which case LearnQ’s total liability will not exceed one hundred dollars).
9.2 Limitation on Indirect Liabilities.To the extent permitted by applicable law and subject to Section 9.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to this agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, cost of replacement services, profits, savings, or goodwill.
9.3 Unlimited Liabilities. Nothing in this agreement excludes or limits either party's Liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its indemnification obligations under Section 10 (Indemnification);
(c) its infringement of the other party's Intellectual Property Rights;
(d) its payment obligations under this agreement; or
(e) matters for which liability cannot be excluded or limited under applicable law.
10. Indemnification
10.1 Our Indemnification Obligations to Customer. We will defend and indemnify Customer against settlement amounts as well as damages and costs finally awarded in any third-party legal proceeding (“Indemnified Amounts”) to the extent arising from an allegation that Customer's use of our technology used to provide the Services infringes the third party's Intellectual Property Rights.
10.2 Customer's Indemnification Obligations to Us. Customer will defend and indemnify us against Indemnified Amounts in any third-party legal proceeding to the extent arising from (a) Customer Data or (b) Customer's and Customer's End Users’ use of the Services.
10.3 Indemnification Exclusions. These indemnification obligations will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of this agreement or (b) a combination of the indemnifying party's technology with materials not provided by the indemnifying party under this agreement, unless such combination is required by this agreement.
10.4 Notice Requirement.The indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the third-party legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and third-party legal proceeding. If breach of this notification obligation prejudices the defense of the legal proceeding, the indemnifying party's obligations will be reduced in proportion to the prejudice.
10.5 Sole Control Requirement. The indemnified party must give sole control of the indemnified portion of the third-party legal proceeding to the indemnifying party, subject to the following: (a) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (b) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
10.6 Remedies. If we reasonably believe the Services might infringe a third party's Intellectual Property Rights, then we may, at our sole option and expense (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative. If we can’t figure out a reasonable way to offer these remedies, we may suspend or terminate Customer's use of the Services, with a pro-rata refund of prepaid and unused Fees for the Services.
10.7 Indemnification is the Sole Remedy for Third-Party Intellectual Property Rights Allegations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 10 (Indemnification).
11. Disputes
11.1. Jurisdiction and Venue. Subject to the dispute resolution provisions below, all claims and disputes arising from or relating to this agreement or the Services may only be brought in the federal or state courts of San Francisco County, California. Both Customer and we consent to venue and personal jurisdiction there.
11.2 Informal Resolution. Before filing a claim, we must first be contacted through the notice procedures below. The parties will try in good faith to settle any dispute. If the dispute is not resolved within thirty days of notice, a formal proceeding may be brought in accordance with this Section 11.
11.3 Mandatory Arbitration. Any claims or disputes arising from or relating to this agreement or the Services (including any dispute regarding the interpretation or performance of the agreement) must be resolved through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be in English and held in San Francisco, California.
11.4 Exceptions. A lawsuit may be filed in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights without first engaging in the informal dispute resolution process described above. Notwithstanding anything to the contrary in this agreement, if Customer represents a governmental entity or institution subject to the law of a United States’ state that mandates different dispute resolution terms, governing law, or venue, we agree to such state law requirements.
11.5 NO CLASS ACTIONS. Disputes with us may only be resolved on an individual basis and neither Customer nor any user will bring a claim in a class, consolidated, or representative action. The parties expressly waive any class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations.
12. Miscellaneous
12.1 Authority to bind. If you are accepting on behalf of an organization or entity, you represent and warrant that (a) you have full legal authority and power to bind that organization or entity to this agreement; (b) you have read and understand this agreement; and (c) you agree, on behalf of that entity or organization, to this agreement.
12.2 Severability. If one or more of the provisions contained in this agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
12.3 Assignment. Customer may not assign this agreement, or Customer's rights or obligations under it, in whole or in part, except that Customer may assign this agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing advance written notice to us. We may freely assign this agreement to an Affiliate or in connection with a merger, acquisition, reorganization, or transfer of assets. Any other attempt to transfer or assign is void.
12.4 Entire agreement. This agreement, together with Customer's Order, constitutes the entire agreement between Customer and us with respect to its subject matter, and supersedes any and all prior agreements, discussions, negotiations, and offers, whether verbal or in writing. Excluding Orders, terms in a business form, purchase order, or other ordering document used by either party will not amend or modify this agreement; any such documents are for administrative purposes only.
12.5 Amendments. Any amendment to this agreement must be in writing (expressly stating that it is amending this agreement) and signed by both parties.
12.6 Subcontractors. We may use subcontractors in order to provide the Services under this agreement. These subcontractors may include, for example, hosting and infrastructure providers. We are responsible and assume liability for any such subcontractors in their performance of this agreement.
12.7 No Third-Party Beneficiaries. This agreement does not confer any benefits on any third party unless it expressly states that it does.
12.8 Conflicting Terms. If there is a conflict between the documents that make up this agreement, the documents will control in the following order: the Order, the Data Privacy Addendum, any Service-Specific Terms, and this agreement.
12.9 Headings. Headings and captions used in this agreement are for reference purposes only and will not have any effect on the interpretation of this agreement.
12.10 Governing law. Except as set forth in Section 11.4, this agreement and all disputes or claims (including procedural issues) between the parties are governed by the laws of California, excluding California’s conflict of laws rules. This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
12.11 Force Majeure. Except for Customer’s obligation to pay Fees owed, neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
12.12 No Agency or Waiver. This agreement does not create any agency, partnership, or joint venture between the parties. Neither party waives any rights by not exercising (or delaying the exercise of) any rights under this agreement.
12.13 Notices. We will provide notices under this agreement to Customer by sending an email to the email address we have on file for Customer. Customer will provide notices under this agreement to us by sending an email to contract_notices@LearnQ.com. Notice will be treated as received when the email is sent. Customer is responsible for keeping Customer's email address current throughout the Subscription Term.
12.14 Updates to This Agreement. From time to time, we may modify this agreement. Unless otherwise specified, changes to this agreement become effective for Customer (a) upon renewal of the then-current subscription or (b) upon the effective date of a new Order after the updated version of this agreement goes into effect. We will use commercially reasonable efforts to notify Customer of material changes through communications via email or other means. Customer may be required to click to accept or otherwise agree to the modified agreement before renewing a subscription or upon the effective date of a new Order. In any event, continued use of any of our Services after an updated version of this agreement goes into effect will constitute Customer’s acceptance of such updated version.
12.15 Government Rights. To the extent applicable, the Services are “commercial computer software” or a “commercial item” for purposes of FAR 12.212 for and DFARS 227.7202. To the extent permitted in this agreement, use, reproduction, release, modification, disclosure or transfer of the Services is governed solely by the terms of this agreement, and all other use is prohibited.
12.16 Definitions.
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
"Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to those exclusions, Customer Data is considered Customer's Confidential Information.
"Control" means control of greater than fifty percent of the voting rights or equity interests of a party or the power to direct the management or operations of an entity.
“Customer Data” means data submitted to the Services from Customer directly or at Customer's direction.
“Documentation” means our technical documentation and usage guides for the Services made available through the Services.
“Effective Date” means the date this agreement is entered into by the parties, either by acceptance online or by the signing of an Order.
“End User” means an individual that Customer permits to use the Services.
“including” means including but not limited to.
"Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
“Legal Process” means any information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
"Liability" means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
"Order" means our order form or web page, or an ordering document agreed to with your reseller, through which you have procured the Services.
“Services” means the services described in Customer's Order, including any software provided by us to access the services, and includes updates and modifications that we make to them from time to time.
“Service-Specific Terms” mean additional terms that apply to certain Services and that we agree to.
“Third-Party Platform” means any product, add-on or platform not provided by us that Customer uses with the Service.
“System Data” is data generated through the use of the Services, including technical logs, metadata, and user action statistics.
These Service-Specific Terms set forth additional terms and conditions that are specific to the Services listed below. LearnQ may update these Service-Specific Terms from time to time, including to add other Service-Specific Terms for new Services made available by LearnQ, by posting an updated version. If an update materially changes any Service-Specific Terms for any Services already purchased by Customer, LearnQ will notify Customer in accordance with Section 12.14 of the agreement.
Mia- AI Tutor
1. Service Description. “Mia - AI Tutor” refers to our AI chatbot tutor services. If you use Mia- AI Tutor, it is included in the definition of Services.
2. Generated Output. During your Subscription Term, we grant you and your End Users the right to use Mia- AI Tutor to submit inputs and receive generated outputs. When you or your End Users use Mia- AI Tutor, such inputs and outputs are your Customer Data. You are responsible for your Customer Data. You acknowledge that due to the nature of machine learning and the technology powering Mia- AI Tutor, outputs may not be unique and LearnQ may generate the same or similar output for third parties. You hereby irrevocably release and agree not to sue us with respect to any liability for direct or indirect copyright, trademark or other infringement, misappropriation or violation of any rights with respect to any generated output.
3. Machine Learning for Product Improvement. You acknowledge that a fundamental component of Mia- AI Tutor is the use of machine learning for the purpose of providing and improving our products and services. Subject to the Agreement and the relevant data processing agreement, as applicable, LearnQ may use Customer Data generated by you and your End Users’ use of Mia- AI Tutor to provide, protect, maintain, and improve the Services, comply with applicable law, and enforce our policies.
4. Usage Limits. Depending on your purchased Services, you may have a limit on your use of Mia- AI Tutor. If you exceed the usage limit allotted by your subscription plan: (i) you may be required to purchase additional usage to continue accessing and using Mia- AI Tutor and (ii) LearnQ may suspend or degrade performance of the Mia- AI Tutor features. You acknowledge that any purchased usage for Mia- AI Tutor is tied to your LearnQ subscription, and account termination will invalidate any remaining purchased usage.
5. Usage Restrictions. You and your End Users may not use Mia- AI Tutor:
6. WARRANTY DISCLAIMER. LEARNQ DOES NOT MAKE ANY WARRANTY REGARDING THE OUTPUTS THAT MAY BE GENERATED FROM USE OF MIA-AI TUTOR, INCLUDING WITH RESPECT TO THE FACTUAL ACCURACY OF ANY OUTPUTS OR SUITABILITY FOR YOUR USE CASE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF ANY MIA-AI TUTOR OUTPUTS IS DONE AT YOUR SOLE RISK. DUE TO THE CURRENT NATURE OF GENERATIVE TECHNOLOGY, YOU SHOULD NOT RELY ON MIA-AI TUTOR AS A SINGLE SOURCE OF FACTUAL INFORMATION. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LEARNQ OR THROUGH MIA-AI TUTOR SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7. Updates. From time to time, we may modify these terms. The effectiveness and our obligations to you regarding such modifications are as set forth in the agreement.
PR Activities:
Press Releases and PR Activities: LearnQ.ai reserves the right to undertake PR activities highlighting its association with the Institute, stemming from the Institute's engagement as a customer for LearnQ.ai's Digital SAT SaaS Product.
B. Maintenance of Reputation: LearnQ.ai commits to ensuring that all PR activities uphold and respect the reputation of the Institute.
C. Prior Approval: Before releasing any significant press statement on primary media platforms, LearnQ.ai will obtain a prior approval from the Institute.
D. Case Studies: LearnQ.ai anticipates that the Institute will provide feedback and share experiences related to the Digital SAT SaaS Product. This feedback may be used by LearnQ.ai to draft and publish blogs, articles, or case studies.
