Date: Tuesday, August 25, 2021  

 

This Agreement (the “Agreement”) is entered into between LMS and the entity agreeing to these terms (“Customer”). “LMS” means (i) LMS Portals, LLC, with offices at 119 Drum Hill Road, #252 Chelmsford, MA 01824 with respect to all LMS Services. 

 

This Agreement is effective as of the date you click the “I Accept” button below or, if applicable, the date the Agreement is countersigned (the “Effective Date”). 

 

If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or the applicable entity to these terms; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the party that you represent to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity please do not click the “I Accept” button below (or, if applicable, do not sign this Agreement). 

 

This Agreement governs Customer's access to and use of the LMS Platform as ordered and described in detail below.
 

1. LMS Platform. 

   1. LMS will provide the access to the LMS Portals Platform ordered in the applicable Order Form:

      1. Access to the LMS Portals Platform; including Your Top-Level Portal and Sub-Portals;

         1. Access to the LMS Portals Platform allows the customer to 

            1. create and upload Content to Your Top-Level Portal and Sub-Portals;

            2. run courses and training for End Users for Your internal business purposes or, if expressly permitted to do so by Your Plan, on a commercial basis (i.e. by charging End Users through the E-Commerce Module); and

            3. sublicense the right to access and use Your Top-Level Portal and Sub-Portal(s) to Your End Users.

            4. Access to the LMS Portals Platform Portals Support Services;

      2. Access to LMS E-Learning Courses (if applicable)

         1. Customer agrees that they will under no circumstances seek to remove, alter or copy the E-Learning Courses they obtain access to via their LMS Portals;                                                

2. Terms of Service​

   1. The customer also agrees to ensure that all of their end users abide by LMS Portals Terms of Service and all terms contained therein and agrees to assume any obligations or liabilities of their end users pursuant to the LMS Portals Terms of Service.

   2. Your License Rights. 

      1. Subject to the terms and conditions of this Agreement, LMS grants you a non-exclusive, non-sublicensable and non-transferable license to access and use the LMS Platform described above during the applicable License Term for your own business purposes, in accordance with this Agreement, LMS Terms of Service and all Laws.

   3. Restrictions. 

      1. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the LMS Platform; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.

   4. License Term and Renewals.

      1. The License Term services period will be indicated in the Order (as applicable).  The License Term and any applicable service periods will commence on the Order date (unless a different start date is designated in the Order) and expire on the expiration date indicated in the customer account. 

      2. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable License Term. 

3. The Customer expressly agrees to abide by the LMS Portals Terms of Service and all terms contained therein. (The Terms of Service can be found here: “https://www.lmsportals.com/terms-of-service”).      

4. Modifications

   1. Modifications to Services.

      1. Deprecation Policy. LMS will notify Customer at least 12 months before a Significant Deprecation unless LMS reasonably determines that: (i) LMS is not permitted to do so by law or by contract (including if there is a change in applicable law or contract), or (ii) continuing to provide the Service that is subject to the Significant Deprecation could create a (A) security risk or (B) substantial economic or technical burden.

      2. Other Modifications. Subject to LMS Portals Terms of Service, LMS may make changes to the Services, which may include adding, updating, or discontinuing any Services or portions of feature(s) of the Services. LMS will notify Customer of any material change to the Core Services.                                                                                                                                                       

5. Customer Obligations

   1. Compliance. Customer will (a) ensure that Customer and its End Users’ use of the Services, including all access to and use of Customer Data by it and its End Users, complies with this Agreement and with any of its applicable contract terms or policies, including any employment contracts or employer’s policies regarding technology usage, security, or confidentiality; (b) use commercially reasonable efforts to prevent unauthorized access or use of the Services; and (c) promptly notify LMS of any unauthorized use of, or access to, the Services of which Customer becomes aware.

   2. Administration of Services

      1. Admin Console. LMS will provide Customer access to the Admin Console for the Administrator to manage its use of the Services (and use of the Services by its End Users, if applicable). Customer may use the Admin Console to specify one or more Sub-Administrators (Supervisors) who will have the rights to access Admin Account(s). Customer is responsible for: (a) maintaining the confidentiality and security of the End User Accounts and associated passwords; and (b) any use of the End User Accounts. Customer agrees that LMS’s responsibilities do not extend to the internal management or administration of the Services for Customer or any End Users.

      2. Administrator Access to End User Accounts. An Administrator will have the ability to access, monitor, use, modify, withhold, or disclose Customer Data associated with any End User Accounts and control End User’s access to the Services. An Administrator may also have the ability to: (i) control account settings for End User Accounts (including changing End User Account passwords) and (ii) remove or disable any Services or Additional Products or other services/products enabled or installed using the End User Account. Use of Additional Products or other services/products with the End User Accounts is at Customer’s own risk.

      3. Consents. Customer will obtain and maintain all required consents to permit: (i) Customer’s, and its End Users’ if applicable, use of the Services; and (ii) accessing, storing, and processing of Customer Data under this Agreement.

   3. Use Restrictions.

      1. Customer will not, and will not allow End Users or third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sublicense, transfer or distribute any of the Services; (c) sell, resell, or otherwise make the Services available to a third party as part of a commercial offering that does not have material value independent of the Services; or (d) access or use the Services: (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees; (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) in a manner that breaches, or facilitates the breach of, Export Control Laws; or (v) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA. Unless otherwise permitted in the Service Specific Terms, Customer will not use, and will not allow End Users to use, the Services to place or receive emergency service calls.

   4. Requesting Additional End User Accounts During Order Term. 

      1. Customer may purchase additional End User Accounts during an Order Term by: (a) executing an additional Order Form with LMS, as applicable, or (b) via the Admin Console. Such additional End User Accounts will have a pro-rated term ending on the last day of the applicable Order Term.                                                                                                                              

6. Payment

   1. Usage and Invoicing. Customer will pay all Fees for the Services. LMS will invoice Customer all Fees for the Services. LMS’s measurement tools will be used to determine Customer’s usage of the Services. Customer may elect one of the following billing options, or from among other options offered by LMS, when placing its order for the Services. LMS may change its offering of billing options, including by limiting or ceasing to offer any billing option, upon thirty days’ written notice to Customer (which may be by email). Billing options may not be available to all customers. Customer may pay for the Services using the payment options listed in Section 6.3.

   2. Payment Plan.

      1. Monthly Plan. If Customer selects this option, Customer will be committed to purchase the Services for a pre-defined term, a monthly basis, and will pay for the Services on a monthly basis. LMS will bill Customer: (i) Fees based upon Customer’s usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services.. Any partial month of Services usages will be rounded up to a full month of Services usage for the purposes of calculating Fees.

      2. Annual Plan. If Customer selects this option, Customer will be committed to purchasing the Services from LMS for an annual term. LMS will bill Customer according to the terms associated with Customer’s elections on the Order Form.

   3. Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Form or invoice.

      1. Credit Card or Debit Card. Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) LMS will charge Customer for all applicable Fees when due and (ii) these Fees are considered overdue thirty days after the end of the month during which Customer received the Services.

      2. Invoices. Payments for invoices are due thirty days after the invoice date, unless otherwise specified on the Order Form, and are considered overdue after such date.

      3. Other Forms of Payment. Customer may change its payment method to those available within the Admin Console. LMS may enable other forms of payment by making them available in the Admin Console. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.

   4. 4.4 Overdue Payments.

      1. Customer’s payment of Fees is overdue if LMS has not received it by the payment due date. If Customer’s payment is overdue, LMS may (i) charge interest on the overdue amount at 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full, and (ii) Suspend or terminate the Services.

      2. Customer will reimburse LMS for all reasonable expenses (including attorneys' fees) incurred by LMS in collecting overdue payments, except where such payments are due to LMS's billing inaccuracies.

   5. Purchase Orders. 

      1. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then: (a) LMS will invoice Customer without a purchase order number; and (b) Customer will pay invoices without a purchase order number. Any terms on a purchase order are void.

   6. Taxes. 

      1. Taxes are not included in the Fees. 

      2. Customer will pay Taxes for the Services. If legally required, Customer will withhold Taxes from its payments to LMS and provide a withholding Tax certificate. 

      3. Unless Customer provides a timely and valid tax exemption certificate, Customer will pay any invoiced Taxes for the Services. Without limiting Customer’s obligation to pay Fees, Customer will withhold Taxes if legally required.

   7. Price Revisions. 

      1. LMS may modify its Prices at any time unless otherwise expressly agreed in an addendum or Order Form. LMS will notify Customer at least 30 days in advance of any Price increases.          

7. Technical Support Services (TSS) 

   1. LMS will provide TSS to Customer during the Order Term in accordance with the TSS Guidelines subject to payment of support Fees, if applicable.                                                                                      

8. Suspension

   1. LMS Portals Terms of Service Violations. If LMS becomes aware that Customer’s or any End User’s use of the Services violates the LMS Portals Terms of Service, LMS will give Customer notice of the violation by requesting that Customer corrects the violation. If Customer fails to correct the violation within 24 hours of LMS's request, then LMS may Suspend all or part of Customer's use of the Services until the violation is corrected. Suspension of the Services may include removal or unsharing of content that violates the LMS Portals Terms of Service.

   2. Other Suspension. 

      1. Notwithstanding Section 8.1 (LMS Portals Terms of Service Violations) LMS may immediately Suspend all or part of Customer’s use of the Services (including use of the underlying LMS Account) if: (a) LMS believes Customer's or any Customer End User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the LMS network or servers used to provide the Services; (b) Customer’s use of the Services is prohibited in the Service Specific Terms; (c) there is suspected unauthorized third-party access to the Services; (d) LMS believes it is required to Suspend immediately to comply with applicable law; or (e) Customer is in breach of Section 5.3 (Use Restrictions) or the Service Specific Terms. LMS will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer’s request, unless prohibited by law, LMS will notify Customer of the basis for the Suspension as soon as is reasonably possible.              

9. Confidentiality

   1. Obligations. Subject to Section 9.2 (Disclosure of Confidential Information) the recipient will use the other party’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. The recipient will use reasonable care to protect against disclosure of the other party’s Confidential Information to other parties other than the recipient’s employees, Affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.

   2. Disclosure of Confidential Information.

      1. General. Regardless of any other provision in the Agreement, the recipient or its Affiliates may disclose the other party’s Confidential Information (i) in accordance with a Legal Process, subject to Section 9.2.2 (Legal Process Notification) or (ii) with the other party’s written consent.

      2. Legal Process Notification. The recipient will use commercially reasonable efforts to notify the other party before disclosing that party’s Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is informed that (i) it is legally prohibited from giving notice or (ii) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury.                                                 

10. Intellectual Property

    1. Intellectual Property Rights. Except as expressly stated in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data, and LMS retains all Intellectual Property Rights in the Services.

    2. Feedback. At its option, Customer may provide Feedback about the Services to LMS. If Customer provides Feedback, then Customer assigns to LMS all right, title, and interest in that Feedback.      

11. Marketing and Publicity 

    1. Each party may use the other party’s Brand Features in connection with this Agreement only as permitted in the Agreement. Customer may state publicly that it is a LMS customer and display LMS Brand Features in accordance with the Trademark Guidelines. LMS may (a) orally state that Customer is a LMS customer and (b) include Customer’s name or Customer Brand Features in a list of LMS customers in LMS’s promotional materials. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features with written notice to the other party and a reasonable period to stop the use.                                                                                           

12. Representations, Warranties and Disclaimers

    1. Representations and Warranties. Each party represents that it: (a) has full power and authority to enter into the Agreement; and (b) will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.

    2. Disclaimers. Except as expressly provided for in the Agreement, to the fullest extent permitted by applicable law, LMS (a) does not make any other warranties of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the Services; and (b) makes no representation about content or information made accessible through the Services. Unless otherwise stated in Agreement, Customer acknowledges the Services are not capable of placing or receiving emergency services calls.                                                                                                           

13. Term and Termination

    1. Agreement Term. This Agreement will remain in effect for the Term unless it expires or is terminated in accordance with the Agreement.

    2. Renewal.

       1. With a Monthly Plan. With a Monthly Plan Customer is not committed to purchase the Services for a pre-defined term. As a result, there is no renewal event for the Monthly Plan. Rather, LMS will continue billing Customer fees consistent with Section 6 above.

       2. With an Annual Plan. At the end of each Order Term, the Services will renew consistent with Customer’s elections on the Order Form or Admin Console.

       3. Generally. Customer may alter the number of End User Accounts to be renewed via the Admin Console. Customer will continue to pay LMS the then-current Fees for each renewed End User Account unless Customer and LMS mutually agree otherwise. If one party does not want the Services to renew, then it will provide the other party written notice to this effect at least fifteen days before the end of the then current Order Term. This notice of non renewal will be effective upon the conclusion of the then current Order Term.

    3. Termination for Breach. Either party may terminate the Agreement if the other party: (a) is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.

    4. Termination for Inactivity. LMS reserves the right to terminate the Agreement and the provision of the Services upon 30 days advance notice if, for a period of 60 consecutive days, Customer, including any End Users: (a) has not accessed the Admin Console or (b) has not used the Services.

    5. Effects of Termination. If the Agreement terminates or expires, then all Order Forms also terminate or expire, as applicable. If the Agreement terminates or expires, then: (a) all rights and access to the Services under the Agreement will terminate (including access to Customer Data); and (b) LMS will send Customer a final invoice.

    6. Survival. The following Sections will survive expiration or termination of this Agreement: Section 6 (Payment), 9 (Confidentiality), 10 (Intellectual Property), 12.2 (Disclaimer), 13.5 (Effects of Termination), 14 (Indemnification), 15 (Liability), 16 (Miscellaneous) and 17 (Definitions).                  

14. Indemnification

    1. Customer Indemnification Obligations. Unless prohibited by applicable law, Customer will defend LMS and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (a) any Customer Indemnified Materials; or (b) Customer’s or an End User’s use of the Services in violation of the LMS Terms of Service or the Use Restrictions.

    2. Indemnification Exclusions. Section 14.1 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from: (a) the indemnified party’s breach of the Agreement; or (b) a combination of LMS Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.

    3. Indemnification Conditions. Section 14.1 (Customer Indemnification Obligations) is conditioned on the following:

       1. 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 Section 14.4.1 prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Sections 14.1 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

       2. The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) 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.

    4. Remedies

       1. If LMS reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then LMS may, at its sole option and expense: (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.

       2. If LMS does not believe the remedies in Section 14.5(a) are commercially reasonable, then LMS may Suspend or terminate the impacted Services.

    5. Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 14 (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 14 (Indemnification).                                                                                                                                               

15. Liability

    1. Limited Liabilities.

       1. To the extent permitted by applicable law and subject to Section 15.2 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any: (i) lost revenues, profits, savings or goodwill; or (ii) indirect, special, incidental, consequential, or punitive damages.

       2. Each party’s total Liability for damages arising out of or relating to the Agreement is limited to the Fees paid by Customer under the Agreement during the 12 month period before the event giving rise to liability.

       3. No Liability for Course Content; 

          1. Customer agree LMS will not have any liability arising out of the veracity, quality or completeness of any information provided by LMS in its provided Court Content for that Customer and its End Users’. 

          2. Customer further agrees to alert LMS to any perceived discrepancies, mistakes or other issues relating to the veracity, quality or completeness of any information provided by LMS in its provided Court Content, via email, in a timely manner if such an issue is discovered by the Customer or its End Users.

    2. Unlimited Liabilities. Nothing in the Agreement excludes or limits either party’s Liability for: (a) death, personal injury or tangible personal property damage resulting from its negligence or the negligence of its employees or agents; (b) its fraud or fraudulent misrepresentation; (c) obligations under Section 14 (Indemnification); (d) its infringement of the other party’s Intellectual Property Rights; (e) its payment obligations under the Agreement; or (f) matters for which liability cannot be excluded or limited under applicable law.                                                        

16. Miscellaneous

    1. Notices. 

       1. LMS may provide any notice to Customer by: (a) sending an email to Notification Email Address or by (b) posting a notice in the Admin Console. Customer may provide notice to LMS by sending an email to legal-notices@lmsportals.com . 

       2. Notice will be treated as received when (x) the email is sent, whether or not the other party has received the email or (y) notice is posted in the Admin Console. 

       3. Customer is responsible for keeping its Notification Email Address current throughout the Term.

    2. Emails. Under this Agreement, the parties may use emails to satisfy written approval and consent requirements.

    3. Assignment. Neither party may assign the Agreement without the written consent of the other party, except to an Affiliate where: (a) the assignee agrees in writing to be bound by the terms of the Agreement; (b) the assigning party remains liable for obligations incurred under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

    4. Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization: (a) that party will give written notice to the other party within 30 days after the change of Control; and (b) the other party may immediately terminate the Agreement any time within 30 days after it receives that written notice.

    5. Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its control, including acts of God, natural disaster, terrorism, riots, or war.

    6. Subcontracting. LMS may subcontract obligations under the Agreement but will remain liable to Customer for any subcontractor obligations.

    7. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

    8. Severability. If any Section (or part of a Section) of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

    9. No Agency. The Agreement does not create any agency, partnership or joint venture between the parties.

    10. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

    11. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

    12. Governing Law. All claims arising out of or relating to this Agreement or the Services will be governed by Massachusetts law, excluding that state’s conflict of laws rules, and will be litigated exclusively in the federal or state courts of Suffolk County, Massachusetts; the parties consent to personal jurisdiction in those courts.

    13. Amendments. Except as specifically stated otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement and signed by both parties.

    14. Independent Development. Nothing in this Agreement will be construed to limit or restrict either party from independently developing, providing, or acquiring any materials, services, products, programs, or technology that are similar to the subject of the Agreement; provided, that the party does not breach its obligations under the Agreement in doing so.

    15. Entire Agreement. The Agreement states all terms agreed between the parties and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of this Agreement. In entering into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in the Agreement. The Agreement includes URL links to other terms (including the URL Terms), which are incorporated by reference into the Agreement.

    16. 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 Form, the Agreement, and the URL Terms.

    17. Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

    18. Electronic Signatures. The parties consent to electronic signatures.

    19. Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.                                                                    

17. Definitions

    1. “Account” means Customer’s LMS account credentials and correlating access to the Services under this Agreement.

    2. “Additional Products” means products, services and applications that are not part of the Services but that may be accessible for use with the Services.

    3. “Admin Account” means a type of End User Account that Customer  may use to administer the Services.

    4. “Admin Console” means the online console(s) and tool(s) provided by LMS to Customer for administering the Services.

    5. “Administrators” mean the Customer-designated technical personnel who administer the Services on Customer’s behalf, and may have the ability to access Customer Data and End User Accounts.

    6. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

    7. “Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinctive brand features.

    8. “Confidential Information” means information that one party (or Affiliate) discloses to the other party under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the recipient, is shared with the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.

    9. “Control” means control of greater than 50% of the voting rights or equity interests of a party.

    10. “Core Services” means the "Core Services" as described in the Services Summary.

    11. “Customer Data” means data submitted, stored, sent or received via the Services by Customer, its Affiliates or End Users.

    12. “Customer Indemnified Materials” means the Customer Data and Customer Brand Features.

    13. “Domain Email Address” means the email address on the Domain Name for use in connection with the Services.

    14. “Domain Name” means the domain name specified in the Order Form to be used in connection with the Services.

    15. “Emergency Security Issue” means either: (a) Customer’s or End Users’ use of the Services in violation of the Acceptable Use Policy, where such use could disrupt: (i) the Services; (ii) other customers’ use of the Services; or (iii) the LMS network or servers used to provide the Services; or (b) unauthorized third party access to the Services.

    16. “End Users” means the individuals Customer permits to use the Services and who are managed by an Administrator.

    17. “End User Account” means a LMS-hosted account established by Customer through its Administrator for an End User to use the Services.

    18. “Export Control Laws” means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.

    19. “Feedback” means feedback or suggestions about the Services provided to LMS by Customer.

    20. “Fees” means the product of the amount of the Services used or ordered by Customer multiplied by the Prices, plus any applicable Taxes.

    21. “LMS Indemnified Materials” means LMS’s technology used to provide the Services and LMS’s Brand Features.

    22. “High Risk Activities” means activities where the use or failure of the Services could lead to death, personal injury, or environmental damage, including operation of nuclear facilities, air traffic control, life support systems, or weaponry.

    23. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.

    24. “including” means including but not limited to.

    25. “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

    26. "Intellectual Property" or "IP" means anything protectable by an Intellectual Property Right.

    27. “Intellectual Property Rights” means all patent rights, copyright, rights in trade secret (if any), trademark rights, design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

    28. “Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.

    29. “Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.

    30. “Notification Email Address” means the email address(es) designated by Customer in the Admin Console.

    31. “Order Form” means the online order page or pages, or other ordering document acceptable to LMS under this Agreement, issued by LMS and accepted by LMS specifying the Services LMS will provide to Customer under the Agreement.

    32. “Order Term” means the period of time starting on the Services Start Date for the Services and continuing for the period indicated on the Order Form, subject to early termination in accordance with this Agreement.

    33. “Other Services” means the “Other Services” as described in the Services Summary.

    34. “Services” means the applicable Core Services and Other Services that are ordered in the applicable Order Form.

    35. “Services Start Date” means the date stated in the Order Form or, if later, the date LMS makes the Services available to Customer.

    36. “Significant Deprecation” means a material discontinue of or backwards incompatible change to the Core Services that results in Services no longer enabling Customer or End Users to: (1) send and receive e-mail messages; (2) schedule and manage events; (3) create, share, store and synchronize files; (4) communicate with other End Users in real time; or (5) search, archive, and export email messages.

    37. “Suspend” or “Suspension” means the disabling of access to or use of the Services, or components of the Services.

    38. “Taxes” means all government-imposed taxes, except for taxes based on LMS’s or Customer’s net income, net worth, asset value, property value, or employment.

    39. “Term” means the period starting on the Effective Date and will remain in effect so long as there is an active Order Form.

    40. “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

    41. “URL Terms” means the Acceptable Use Policy, Service Specific Terms, the SLA, and the TSS Guidelines.

    42. “Use Restrictions” means the restrictions in Section 3.3 (Use Restrictions) of the Agreement and any additional restrictions on the use of Services in the Service Specific Terms.