MSA
Last updated October 14, 2026
This SOFTWARE-AS-A-SERVICE AGREEMENT (this “Agreement”) is entered into on [DATE] (the “Effective Date”) by and between EMPOWER THE USER, INC. (“ETU”), with an office address located at 100 Summer St. Suite 1600, Boston, MA 02110, and [CUSTOMER ENTITY NAME] (“Customer”), with an office address located at [ADDRESS]. Each of ETU and Customer may be referred to herein as a “Party” and collectively as the “Parties”.
WHEREAS, Customer desires to receive from ETU, and ETU desires to provide to Customer, ETU’s cloud-based learning simulation platform along with certain ancillary services described herein.
NOW, THEREFORE, for good and sufficient consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
TERMS AND CONDITIONS
1. Definitions. Capitalized terms used in this Agreement without definition shall have the meanings set forth below:
1.1 "AI Tool” means any artificial intelligence or machine learning algorithm, program, model, or software used by ETU or otherwise incorporated into the Learning Solution.
1.2 "Affiliates" means any person or entity controlling, controlled by, or under common control of, a party to this Agreement. As used in the foregoing sentence, control means the ability to direct the affairs of an entity through ownership of voting interest, contract rights, or otherwise.
1.3 “Authorized Users” means Customer’s employees, independent contractors, or any personnel who are authorized by Customer to access and use the Learning Solution and for whom access to the Learning Solution has been purchased pursuant to this Agreement.
1.4 "Confidential Information" means all information the Receiving Party accesses or receives from the Disclosing Party pursuant to this Agreement, whether oral or in writing (including electronic transmission) concerning the Disclosing Party's business, technology, finances, customers or prospective customers, security, plans, methods, research and development, prototypes, software, books and records, and other similar information and materials: (i) that is designated as "Confidential" or "Proprietary" by the Disclosing Party, or (ii) that by the nature of the circumstances surrounding disclosure, or the information itself, should be treated as confidential.
1.5 "Confidentiality Period" has the meaning set forth in Section 13.6 (Confidentiality Period).
1.6 "Contract Year" means a period of 12 months starting on the Effective Date and each anniversary of that date.
1.7 “Customer Data” means electronic data and information submitted by Customer or its Authorized Users to the Learning Solution, excluding ETU Data.
1.8 “Customer Learning Content” means any content that Customer submits for inclusion in a Learning Module during the development or creation of such Learning Module, excluding any ETU Data. For the avoidance of doubt, ETU’s templates, scripts, and other frameworks for the development or creation of a Learning Module will not be deemed “Customer Learning Content”.
1.9 “Disclosing Party” has the meaning set forth in Section 13 (Confidential Information).
1.10 “ETU Data” means any and all data and information of ETU that is used or otherwise provided in connection with the provision of the Learning Solution or Professional Services or that relates to the Learning Solution or Professional Services.
1.11 "Fees" has the meaning set forth in Section 4.1 (Fees).
1.12 "Force Majeure Event" has the meaning set forth in Section 14.5 (Force Majeure).
1.13 "Indemnified Party" and "Indemnifying Party" have the meaning set forth in Section 11.4 (Indemnification Procedures).
1.14 "Infringement Claim" has the meaning set forth in Section 11.1 (Indemnification).
1.15 "Initial Subscription Term" has the meaning set forth in Section 8.2 (Term of Quote).
1.16 "Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter existing under or related to any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.17 "Learning Module” means a simulated learning module that is designed to provide an immersive learning experience, whether such module is solely developed by Customer, solely developed by ETU, or jointly developed by ETU and Customer.
1.18 “Learning Solution” means ETU’s cloud-based learning platform and the Learning Modules included for such platform, including any updates, enhancements, or modifications to the foregoing.
1.19 "Malicious Code" means any program, code, scripts, agents and files intended to harm, including, for example spyware, viruses, worms, time bombs and Trojan horses.
1.20 “Quote” means a Quote executed by the Parties that specifies the product including, ETUCreate software subscription, Learning Solution, Ready to Deploy (RTD), Off-the-Shelf (OTS), or Enterprise Simulation Bundle. This also includes any related Professional Services being purchased by Customer pursuant to this Agreement.
1.21 “Professional Services” means any professional services provided by ETU and purchased by Customer pursuant to an applicable Quote.
1.22 “Receiving Party” has the meaning set forth in Section 13 (Confidential Information).
1.23 "Renewal Subscription Term" has the meaning set forth in Section 8.2 (Term of Quote).
1.24 "Statement of Work" or "SOW" means a document executed by the Parties that describes bespoke software, customized development, or other deliverables to be provided by ETU to Customer, including the scope, specifications, timeline, and fees for such work.
1.25 “Subscription Term” has the meaning set forth in Section 8.2 (Term of Quote).
1.26 “Subcontractor” means any third party (including Affiliates of ETU) engaged by ETU to perform any part of the services or to supply materials, equipment, or personnel in connection with the services provided under this Agreement. For clarity, “Subcontractor” does not include individual employees or contractors engaged directly by ETU who are under its direct supervision and control.
2. Right to Access Learning Solution.
2.1 Right to Use. Subject to Customer’s payment of the Fees and compliance by Customer and all Authorized Users with this Agreement, ETU hereby grants to Customer during the Subscription Term a non-exclusive, non-sublicensable, non-transferable right for Customer and its Authorized Users to remotely access and use the Learning Solution (including the authorized number of Learning Modules) solely for Customer’s internal business purposes in accordance with this Agreement and not for providing consulting, timesharing or programming services or products to third parties (including but not limited to the Customer's divisions, subsidiaries, parent company, and other Affiliates). Notwithstanding anything to the contrary in this Agreement, ETU reserves the right to update or modify the Learning Solution (including any Learning Modules) to maintain or improve its performance, security, compliance, or functionality, provided, however, that ETU shall not make any modification that results in a material reduction in core functionality of the Learning Solution during a paid Subscription Term without providing reasonable advance notice to Customer.
2.2 Restrictions on Use. Customer shall not (and shall not permit others to): (i) reverse engineer, disassemble, decompile, decode, or adapt the Learning Solution (including any Learning Module), or otherwise attempt to derive or gain access to the source code of the Learning Solution (including any Learning Module), in whole or in part; (ii) modify, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Learning Solution (including any Learning Module); (iii) copy (including but not limited to the use of any robot, spider, or other automatic device or manual process) the Learning Solution (including any Learning Module and any of its features, functions or graphics), in whole or in part; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Learning Solution (including any Learning Module) to any third party; (v) incorporate the Learning Solution (or any Learning Module) into any other software program not provided by ETU; (vi) remove, obliterate, destroy, minimize, block or modify any logos, trademarks, copyright, digital watermarks, or other notices of ETU that are included in the Learning Solution (including any Learning Module); (vii) use the Learning Solution for purposes of: (A) benchmarking or competitive analysis of the Learning Solution; (B) developing, using, or providing a competing software product or service; or (C) any other purpose that directly competes with ETU's business; (viii) bypass or breach any security device or protection used for or contained in the Learning Solution or otherwise work around any technical limitations contained in the Learning Solution; (ix) use the Learning Solution in a manner that abuses, violates, or infringes, or intends to abuse, violate or infringe, the privacy or property rights of any third party or that negatively affects other customers or users of ETU's services; (x) represent that Customer has any ownership rights in, or any right to sell, transfer, or sublicense, the Learning Solution; or (xi) use or access the Learning Solution (including any Learning Module) except as expressly permitted in this Agreement.
2.3 Limitation on Number of Authorized Users and Learning Modules. Customer acknowledges and agrees that access and use of the Learning Solution will be limited to the number of Authorized Users and the number of Learning Modules and / or any other metrics as specified in the applicable Quote. If Customer requires additional Authorized Users or Learning Modules, then Customer must purchase from ETU an increased number of Authorized Users and Learning Modules for the applicable Subscription Term.
2.4 Protection of Credentials. Customer is responsible and liable for all activities, directly or indirectly, arising out of or resulting from the use of any credential issued to Customer or any Authorized User. Customer shall keep (and shall ensure that Authorized Users keep) accounts and authentication credentials that provide access to the Learning Solution secure and confidential. Customer shall take reasonable steps to ensure that Authorized Users do not share usernames, passwords, or other access credentials. Customer must notify ETU without undue delay if it suspects that the security of any accounts or authentication credentials has been compromised or that credentials are being used by more than one individual or otherwise misused.
2.5 End User Terms. Customer may elect to bind Authorized Users to Customer's own terms of use. In such event, this Agreement shall prevail in the event of any conflict between the provisions of this Agreement and any such terms of use.
2.6 Subcontractors. ETU may subcontract any part of the Learning Solution or Professional Services and shall maintain a list of its Subcontractors on its website, which may be updated by ETU from time to time. ETU shall remain fully responsible for the performance of the Learning Solution and Professional Services and for all acts and omissions of its Subcontractors as if they were its own. ETU shall ensure that all Subcontractors are bound by written agreements imposing obligations on confidentiality, data protection, intellectual property, and security that are no less protective than those set out in this Agreement.
3. Intellectual Property Ownership.
3.1 Learning Solution. ETU is the sole and exclusive owner of (and shall retain) all right, title, and interest in and to the Learning Solution (including any improvements, modifications, configurations, derivative works, or other changes to the Learning Solution) and all Intellectual Property Rights relating thereto. Except for the rights set forth in Section 2.1 (Right to Use), Customer shall have no right, title, or interest in the foregoing.
3.2 Ownership of Learning Modules. As part of the Learning Solution, Customer and its Authorized Users will be able to create, access, or otherwise use Learning Modules. Customer will have the ability to create its own Learning Modules by leveraging ETU’s “Simulation Builder” tool within the Learning Solution. Additionally, ETU may offer to Customer as part of the Learning Solution certain pre-existing Learning Modules or may offer to Customer as part of ETU’s Professional Services certain development services relating to Learning Modules, including, but not limited to, full custom development of Learning Module(s) based on Customer’s requirements or co-development of Learning Modules as a joint effort between Customer and ETU. Customer acknowledges that, as between Customer and ETU, ETU owns all right, title, and interest (including all Intellectual Property Rights) in and to the Learning Modules (whether created independently by ETU, independently by Customer, or jointly by ETU and Customer) and all Intellectual Property Rights relating thereto. For the avoidance of doubt, any other deliverables created by ETU (whether bespoke or custom or not) pursuant to Customer instructions, this Agreement, or any SOW shall be owned by ETU, and Customer shall not acquire any ownership or Intellectual Property Rights in such deliverables. However, Customer shall retain ownership of any Customer Learning Content that may be contained in any Learning Module as set forth in Section 10.1 (Ownership of and Rights to Customer Data and Customer Learning Content).
3.3 AI Improvements and Data. The collection, use, and processing of Customer Data by ETU's AI Tools shall be governed by the AI Addendum attached as Exhibit B, which is incorporated by reference into this Agreement. The AI Addendum may be updated by ETU from time to time in accordance with ETU's policies and applicable AI laws and regulations. Customer's continued use of the Learning Solution following any update to the AI Addendum shall constitute acceptance of such updated terms.
3.4 Use of Feedback. If Customer provides any suggestions or comments relating to the Learning Solution (including any Learning Module), ETU shall have the right to retain and use such suggestions or comments in current or future products (including updates to the Learning Solution) without Customer’s approval and without compensation to Customer.
3.5 Reservation of Rights. ETU reserves all rights not expressly granted to Customer in this Agreement.
4. Fees.
4.1 Fees. Customer shall pay ETU the fees, charges, and other expenses set forth in each Quote (the “Fees”) without offset or deduction. For instances where an SOW is created, Customer shall pay any fees listed in the SOW.
4.2 Invoicing. Except as otherwise specifically set forth in a Quote, ETU shall invoice Customer for (i) subscription Fees associated with any ETU product or service annually in advance commencing on the date set forth in the applicable Quote and (ii) Fees associated with Professional Services as set forth in the Quote. Except for any shorter payment period specified in an applicable Quote, Customer must pay the Fees invoiced within fifteen (15) days after the date of the applicable invoice.
4.3 Late Payments. Subject to Sections 8.3 (Termination) and 8.4 (Suspension), and in addition to any other rights or remedies that may be available to ETU (whether under this Agreement, in equity, or otherwise), if Customer fails to make any payment when due, ETU may (i) charge Customer interest on the past due amounts at a rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less, and (ii) suspend access to the Learning Solution, or otherwise terminate this Agreement and any Quotes, in whole or in part by providing written notice to Customer. Notwithstanding the foregoing, ETU shall not exercise its rights under clause (ii) above where the relevant Fees are disputed in good faith by Customer, provided that Customer notifies ETU of such dispute in writing within seven (7) days of the date of the relevant invoice and pays all undisputed amounts when due.
4.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, service, value added, excise and similar taxes, duties, levies, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
5. Simulation Development Services or Data Analytics Services. If Customer elects to purchase from ETU any development services relating to Learning Modules or any data analytics services relating to Learning Modules, then ETU shall perform such development or data analytics services in accordance with the requirements set forth in the applicable Quote.
6. Bespoke Software and Services. In addition to the standard Learning Solution and Professional Services, ETU may agree to provide bespoke software, customized development, or other deliverables to Customer pursuant to a Statement of Work. The scope, specifications, deliverables, timeline, acceptance criteria (if any), and fees for any such bespoke work shall be set forth in the applicable SOW. Unless otherwise expressly agreed in writing in the applicable SOW, all Intellectual Property Rights in any bespoke software or deliverables created pursuant to an SOW shall be owned by ETU in accordance with Section 3 (Intellectual Property Ownership).
7. Customer Support. During the Subscription Term for the Learning Solution, ETU will provide to Customer the standard customer support services of ETU for such Learning Solution. Such customer support services shall be provided via email or support desk during business hours, excluding any holidays.
8. Term and Termination.
8.1 Term of Agreement. This Agreement shall commence on the Effective Date and continue thereafter until terminated in accordance with this Agreement or until the expiration of all Quotes, whichever is later.
8.2 Term of Quote. The initial term of each Quote shall commence on the effective date of the Quote and shall continue for the period set forth in the Quote (the “Initial Subscription Term”), unless earlier terminated in accordance with this Agreement. Upon the expiration of the Initial Subscription Term, such Quote will automatically renew under the same terms and conditions for additional one (1) year periods (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless a Party provides the other Party with written notice of its intent not to renew the Quote at least thirty (30) days prior to the expiration of the then-current Subscription Term. ETU may increase the Fees for each Renewal Subscription Term by providing Customer with at least sixty (60) days' prior written notice of any such increase.
8.3 Termination. Either ETU or Customer may terminate this Agreement and any outstanding Quote(s) at any time in the event the other Party breaches any material term (including, with respect to Customer, Customer’s breach of the usage restrictions set forth in Section 2.2 (Restrictions on Use) and any payment obligations) and fails to cure such breach within thirty (30) days following notice.
8.4 Suspension. ETU reserves the right to terminate or suspend Customer’s (and the Authorized Users’) access to or use of the Learning Solution if ETU reasonably believes that (i) the Learning Solution is being used in a manner that violates this Agreement, (ii) such suspension or termination is necessary to avoid material harm to ETU, Customer, ETU’s other customers, or any other third party, or (iii) such suspension or termination is required by law or at the request of any governmental or regulatory authority. Where practicable, ETU shall provide reasonable advance notice to Customer before exercising its rights under this Section 8.4 (Suspension).
8.5 Termination Fees. If this Agreement or any Quote is terminated for any reason (other than (i) Customer’s termination for ETU’s uncured breach as set forth in Section 8.3 (Termination) above, or (ii) ETU’s termination pursuant to Section 11.2 (IP Indemnity Remedies)), then Customer must pay any unpaid fees covering the remainder of the terms for all terminated Quotes. In no event will termination for any reason relieve Customer of its obligation to pay any fees payable to ETU for the period prior to the effective date of any termination.
8.6 Effect of Termination. Upon termination or expiration of the applicable Subscription Term: (i) Customer shall immediately cease using the Learning Solution (including all Learning Modules); (ii) ETU shall delete all Customer Data from its systems within sixty (60) days, except to the extent retention is required for ETU’s compliance with legal or regulatory obligations.; and (iii) each Party shall return or destroy the other Party’s Confidential Information in accordance with Section 13.5 (Return or Destruction).
9. Warranties.
9.1 Mutual Warranties. Each Party represents and warrants: (i) that it is duly organized, validly existing and in good standing, and is qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out its obligations under this Agreement; (ii) that its execution, delivery, and performance of this Agreement shall not violate or constitute a default under any agreement of such Party; and (iii) that it has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement.
9.2 ETU Warranties. ETU warrants to Customer that (i) ETU will provide the Learning Solution using a reasonable level of care and skill for the duration of the applicable Subscription Term, (ii) the Professional Services will be performed in a workmanlike manner, and (iii) it will use reasonable efforts to prevent the transmission of Malicious Code to Customer through the Learning Solution. As Customer’s sole and exclusive remedy and ETU’s sole and exclusive liability for breach of the above warranty, ETU shall, at its sole option and expense, (A) with respect to the Learning Solution, correct the Learning Solution so that it conforms to the above warranty (or if ETU is unable to make the Learning Solution operate as warranted, then ETU may elect to refund the unused portion of any Fees paid to ETU for the defective Learning Solution and the license for such defective Learning Solution will terminate) or (B) with respect to the Professional Services, if Customer notified ETU of such failure to comply with such warranty within ten (10) days of completion of the Professional Services at issue, then ETU will reperform that portion of the Professional Services that did not comply with the above warranty (or if ETU is unable to reperform the portion of the Professional Services in a manner that complies with such warranty, then ETU may elect to refund to Customer a portion of the Fees paid for such Professional Services that reflects the diminished value of the Professional Services as determined by ETU). Notwithstanding anything to the contrary contained in this Section 9.2 (ETU Warranties), the above warranties shall not apply if such noncompliance arises from: (A) Customer’s breach of any provision in this Agreement, (B) modification or repair to the Learning Solution not made by ETU; (C) use of the Learning Solution in a manner inconsistent with this Agreement; (D) anything Customer provides (including any Customer Data or Customer Learning Content) or designs (including configurations, instructions, requirements, specifications, or Customer designed Learning Modules); or (E) the combination, operation or use of the Learning Solution with any software, systems, solutions, services, hardware, products, technology, or infrastructure not provided by ETU.
9.3 Customer Warranties. Customer warrants to ETU that: (i) Customer owns all rights, title, and interest in and to the Customer Data and Customer Learning Content; (ii) Customer has secured all rights, licenses, authorizations, permits and approvals necessary to permit ETU to use the Customer Data and Customer Learning Content in connection with the provision of the Learning Solution and Professional Services in accordance with this Agreement (and otherwise for ETU to exercise its rights as set forth in this Agreement) and (iii) the Customer Data, the Customer Learning Content, and any Learning Modules created or designed by Customer (or any parts or components thereof) do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights (including any privacy rights) of any third party or violate any applicable laws, rules, or regulations.
9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 9.1 (MUTUAL WARRANTIES) AND SECTION 9.2 (ETU WARRANTIES), THE LEARNING SOLUTION (INCLUDING THE LEARNING MODULES) AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND ETU HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. ETU SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. ETU MAKES NO WARRANTY OF ANY KIND THAT THE LEARNING SOLUTION (INCLUDING ANY LEARNING MODULES), PROFESSIONAL SERVICES, OR ANY RESULTS OF THE USE OR RECEIPT THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
10. Customer Data, Customer Learning Content, and Data Security.
10.1 Ownership of and Rights to Customer Data and Customer Learning Content. As between the Parties, Customer is and shall remain the sole owner of all right, title, and interest in and to Customer Data and Customer Learning Content. Customer hereby grants to ETU a non-exclusive, irrevocable, worldwide, fully paid, sublicensable, royalty-free license to access, distribute, reproduce, adapt, modify, enhance, display, use, and make derivative works of (and to permit its subcontractors and Affiliates to access, distribute, reproduce, adapt, modify, enhance, display, use, and make derivative works of) any and all Customer Data and Customer Learning Content during the Subscription Term, (a) in order to provide the Learning Solution (including any Learning Modules) and Professional Services to Customer and for ETU to exercise its rights under this Agreement (b) for ETU's purposes in accordance with the AI Addendum, (c) to improve the current Learning Solution (including any Learning Modules), (d) to perform or provide analytics and benchmarking, and (e) to create new services, products, solutions, and other offerings. Customer shall be solely responsible for obtaining all necessary licenses, consents, and rights to grant the rights and licenses to ETU as required by this paragraph.
10.2 Ownership of and Rights to ETU Data. As between the Parties, ETU is and shall remain the sole owner of all right, title, and interest in and to ETU Data.
10.3 Accuracy of Customer Data and Customer Learning Content. Customer shall ensure that the Customer Data and Customer Learning Content is current, accurate and complete. ETU shall not be responsible for any errors in the Learning Solution (including any Learning Module) or the Professional Services attributable to any Customer Data or Customer Learning Content. Customer is solely responsible for ensuring that it has made appropriate backup or duplicate copies of any Customer Data and Customer Learning Content.
10.4 Security Measures. ETU will maintain reasonable administrative, physical, and technical safeguards designed for the protection of the security, confidentiality, and integrity of the Learning Solution and any Customer Data stored on the Learning Solution. Customer shall take reasonable measures to prevent the transmission of Malicious Code to the Learning Solution, including maintaining up-to-date anti-virus software and security measures on systems used to access the Learning Solution.
10.5 Hosting. ETU may host the Learning Solution directly or through third-party hosting providers. ETU may change its hosting arrangements from time to time in its sole discretion, provided that such change does not materially interfere with ETU's obligations under this Agreement or result in a material reduction in the security or availability of the Learning Solution.
10.6 Restricted Data. Customer shall not (and shall ensure that its Authorized Users do not) provide, disclose, transfer, submit, or otherwise make available to ETU (whether through the Learning Solution or otherwise) any Customer Data (or any Customer Learning Content) that includes or contains any (i) “protected health information,” as such term is defined in the Health Insurance Portability and Accountability Act of 1996, as amended by the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act, and their implementing regulations (“HIPAA”) or that is subject or regulated by HIPAA, (ii) any other information regarding an individual’s medical history, mental or physical condition, or mental treatment or diagnosis by a health care professional, (iii) health insurance information, (iv) social security numbers or other government-issued identification numbers, (v) biometric information, (vi) any payment card information or other similar information subject to Payment Card Industry Data Security Standards, or (vii) other sensitive information or data relating to any individual.
10.7 Data Processing Agreement. To the extent that ETU processes any PII (as defined in the Data Processing Agreement attached as Exhibit A) on behalf of Customer in connection with the provision of the Learning Solution or Professional Services, the Data Processing Agreement shall apply. The Data Processing Agreement is incorporated by reference into this Agreement and, in the event of any conflict between the Data Processing Agreement and the main body of this Agreement, the Data Processing Agreement shall prevail with respect to the processing of PII.
11. Indemnification.
11.1 Indemnification by ETU. ETU will defend, at its expense, any third-party action or suit against Customer alleging that the Learning Solution infringes or misappropriates such third party’s registered patent, copyright, or trademark enforceable in the United States, United Kingdom, or European Union (an “Infringement Claim”), and ETU will pay damages awarded in a final judgment against Customer or agreed to in a settlement by ETU that are attributable to any such Infringement Claim; provided, ETU’s obligations under this Section 11.1 (Indemnification by ETU) shall not apply in the event any Infringement Claim results from or is based on: (i) modification or repair of the Learning Solution not made by ETU; (ii) the combination, operation or use of the Learning Solution with any software, systems, solutions, services, hardware, products, technology, or infrastructure not provided by ETU; (iii) use of any version other than the most current version of the Learning Solution, (iv) anything Customer provides (including Customer Data or Customer Learning Content) or designs (including configurations, instructions, requirements, specifications, or Customer designed Learning Modules), (v) Customer’s breach of any provision in this Agreement (or for any other matter that is subject to indemnification by Customer), or (vi) the AI Tool(s) (including any Learning Module(s) created in whole or in part by any AI Tool(s)).
11.2 IP Indemnity Remedies. If the Learning Solution becomes, or in ETU’s opinion is likely to become, the subject of an Infringement Claim, then ETU may, at its sole option and expense: (i) procure the right for the Customer to continue using such Learning Solution; (ii) replace or modify the Learning Solution to avoid the Infringement Claim; or (iii) if options set forth in clause (i) and (ii) above cannot be accomplished despite ETU’s reasonable efforts, then ETU may terminate this Agreement and any Quote(s) in their entirety (or partially with respect to any affected component or part), effective immediately on written notice to Customer. In the event of termination pursuant to clause (iii) above, ETU shall refund to Customer a pro-rata portion of any prepaid Fees for the remainder of the applicable Subscription Term.
11.3 Indemnification by Customer. Customer shall indemnify, hold harmless, and, at ETU’s option, defend ETU from and against any and all claims, suits, causes of action, proceedings, losses, damages, liabilities, fines, fees, penalties, and costs (including attorneys’ fees) incurred or sustained by ETU that relate to or otherwise result from Customer Data, Customer Learning Content, or Customer’s breach of this Agreement.
11.4 Indemnification Procedures. ETU or Customer, where applicable as the indemnified party (the “Indemnified Party”), shall promptly notify the other party, as the indemnifying party (the “Indemnifying Party”), in writing of any action for which the Indemnified Party believes that it is entitled to be indemnified pursuant to this Section 11 (Indemnification). The Indemnified Party shall cooperate with the Indemnifying Party at the Indemnifying Party's sole cost and expense. Where applicable, the Indemnifying Party shall immediately take control of the defense and investigation of such action at the Indemnifying Party's sole cost and expense. The Indemnified Party shall have the right to participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11.5 SOLE AND EXCLUSIVE REMEDIES. THE FOREGOING TERMS IN SECTION 11.1 (INDEMNIFICATION BY ETU) AND SECTION 11.2 (IP INDEMNITY REMEDIES) ABOVE ARE ETU’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY “INFRINGEMENT CLAIMS”.
12. Limitation of Liability.
12.1 LIMITATIONS ON TYPES OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOST, DAMAGED, OR CORRUPTED DATA, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT THE PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
12.2 LIMITATIONS ON AMOUNTS OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY, FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, IN ANY CONTRACT YEAR, EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO ETU PURSUANT TO THIS AGREEMENT IN THAT CONTRACT YEAR.
13. Confidential Information. Confidential or sensitive information that one Party (the "Disclosing Party") provides to the other Party (the "Receiving Party") under this Agreement shall be governed as follows:
13.1 Confidentiality Obligations. The Receiving Party shall maintain the Disclosing Party's Confidential Information in strict confidence and shall not use or disclose such Confidential Information except for purposes permitted under this Agreement. The Receiving Party shall be entitled to disclose such Confidential Information on a need-to-know basis to its employees, agents, subcontractors, attorneys, accountants, and investors, provided the same are bound by non-disclosure and confidentiality obligations no less protective than those set out in this Agreement. The Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party's Confidential Information as it uses in safeguarding its own Confidential Information, but shall not use less than reasonable care and diligence.
13.2 Exclusions. The Receiving Party's obligations with respect to Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; or (iii) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.
13.3 Residual Knowledge. Customer acknowledges that ETU is in the business of software development and, in its development efforts, draws on the knowledge, understanding, and expertise gained through its work with many customers. Notwithstanding any other provision of this Section 13 (Confidential Information), nothing in this Agreement or any Statement of Work shall limit ETU's right to use or exploit: (i) ideas, concepts, and understandings retained in the unaided memory of ETU's employees, agents, and contractors as a result of ETU's performance under this Agreement or any Statement of Work; or (ii) general knowledge, skills, or know-how that ETU possessed prior to entering into this Agreement or that ETU developed or obtained during its performance under this Agreement or any Statement of Work, provided that such use does not involve the disclosure of Customer's Confidential Information in breach of this Section 13 (Confidential Information).
13.4 Legally Required Disclosure. The Receiving Party shall be permitted to disclose the Disclosing Party’s Confidential Information in the event that a subpoena, discovery request, court order, or any other type of request or requirement of a governmental body (with requisite jurisdiction) or other applicable law requires that such Confidential Information be produced or disclosed, provided that the Receiving Party (unless expressly prohibited by the governmental body) gives the Disclosing Party notice of such requirement and cooperates with the Disclosing Party in seeking a protective order or other applicable relief.
13.5 Return or Destruction. Except to the extent that a Party has ongoing rights, promptly after termination or expiration of this Agreement, each Party shall (i) either (A) return the other Party's tangible Confidential Information, or (B) permanently destroy such Confidential Information, and erase it from storage media. Upon request, a Party shall certify in writing to the destruction of such Confidential Information. Notwithstanding the above, the Receiving Party may retain a copy of the Disclosing Party's Confidential Information to the extent required for legal compliance and copies to the extent the same resides on backup servers. Any Confidential Information retained for such purposes shall continue to be subject to the terms of this Agreement.
13.6 Confidentiality Period. The obligations and restrictions of a Receiving Party set forth in this Section 13 (Confidential Information) will apply during the term of this Agreement and for a period of three (3) years following the termination or expiration of this Agreement (the “Confidentiality Period”); provided, that, with respect to any Confidential Information that constitutes a ”trade secret” under applicable law, the obligations and restrictions of a Receiving Party set forth in this Section 13 (Confidential Information) will continue for the longer of (i) the Confidentiality Period and (ii) until such Confidential Information ceases to constitute a “trade secret” under applicable law.
14. Miscellaneous.
14.1 Survival. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1 (Definitions), Section 3 (Intellectual Property Ownership), Section 10.1 (Ownership of and Rights to Customer Data and Customer Learning Content), Section 10.2 (Ownership of and Rights to ETU Data), Section 10.7 (Data Processing Agreement), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 13 (Confidential Information) (for the time period specified therein), and this Section 14 (Miscellaneous).
14.2 Independent Contractors. The Parties are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party.
14.3 Notices. All notices required under this Agreement shall be given in writing and delivered to the receiving Party at its respective address set forth in the signature page to this Agreement by: (i) personal delivery; (ii) certified or registered mail (return receipt requested), or (iii) by a recognized courier service. All such notices shall be effective upon receipt or refused delivery. Any Party may change its notice address by written notice to the other Party in accordance with these terms.
14.4 Complete Agreement. This Agreement, together with any Exhibits, Quotes, and Statements of Work executed by the Parties and any other documents expressly incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
14.5 Force Majeure. Except with respect to Customer’s payment obligations herein, neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrections, fires, floods, storms, explosions, pandemics, epidemics, acts of God, acts of terrorism, war, governmental action, earthquakes, or any other cause that is beyond the reasonable control of such Party (each, a “Force Majeure Event”).
14.6 Marketing Rights. Customer hereby grants to ETU the right to use Customer’s name, logo, trademark, service mark, or other proprietary marks on ETU’s website (and in ETU’s other general marketing materials) for ETU’s general marketing purposes (including to list Customer as a customer of ETU).
14.7 Cumulative Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies will be without prejudice to any other remedies under this Agreement or otherwise.
14.8 Governing Law and Venue. This Agreement is governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights or obligations hereunder (a "Dispute") will, subject to the provisions of clause 14.8.1 to 14.8.8 below , be instituted exclusively in the state or federal courts located in Wilmington, Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.8.1 The parties shall first attempt to resolve any Dispute arising out of or in connection with this Agreement in accordance with the remainder of this clause 14.8 prior to instituting any proceedings in any court.
14.8.2 The parties shall first attempt to resolve a Dispute informally by either party referring the matter in Dispute to the Customer's authorised representative and the Supplier's authorised representative within five (5) working days of the Dispute occurring.
14.8.3 If the Customer's authorised representative and the Supplier's authorised representative are unable to resolve the Dispute within five (5) working days of reference to them, then either party may escalate the Dispute to a member of the executive committee (C-suite) of the Customer and the Supplier.
14.8.4 If the parties' CEOs are unable to resolve the Dispute within ten (10) working days of reference to them, then either party may refer the Dispute to mediation. Any reference to mediation will be made in accordance with the procedures of the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure.
14.8.5 The mediation will be conducted in English at the offices of the Supplier. The Mediation Agreement referred to in the Model Procedure will be governed by and construed and take effect in accordance with the substantive law of the State of Delaware.
14.8.6 To initiate the mediation a party will give notice in writing ("ADR Notice") to the other party.
14.8.7 The mediation will be conducted by a single mediator appointed by the parties or, if the parties are unable to agree on the identity of the mediator within 10 working days of the date of deemed delivery of the ADR Notice, or if the person appointed is unable or unwilling to act, the mediator will be appointed by CEDR on the application of either Party.
14.8.8 If the dispute is not settled by mediation within thirty (30) days of the appointment of the mediator or within such further period as the parties may agree in writing, then the dispute will, at the instigation or either party, be resolved by court proceedings and either party shall be entitled to terminate this Agreement for cause.
14.9 No Assignment. Customer shall not assign or transfer this Agreement (or any of its rights or obligations herein) without the prior written consent of ETU. Any attempt to assign or transfer this Agreement (except as permitted under the terms herein) shall be null and of no effect. For purposes of this Agreement, a change of control transaction will be deemed to be an assignment. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties.
Quote (see separate document)
Exhibit A - Data Processing Agreement
Exhibit B – AI Addendum
Such Other Exhibits as may be added depending on Quote
EXHIBIT A — DATA PROCESSING AGREEMENT
This Data Processing Agreement (this “DPA”) forms part of the Software-as-a-Service Agreement (the “Agreement”) entered into between ETU and Customer. This DPA sets forth the specific terms and conditions that apply to the Processing of PII in connection with the Learning Solution and the provision of the Professional Services. Capitalized terms used but not defined in this DPA shall have the meanings given to them in the Agreement.
In the event of any conflict between the provisions of the Agreement and this DPA, the provisions of this DPA shall prevail to the extent of such conflict.
1. Definitions. In addition to the definitions set forth in Section 1 (Definitions) of the Agreement, the following definitions shall apply for the purposes of this DPA:
1.1 “Data Protection Legislation” means to the extent applicable to the Learning Solution and the provision of the Professional Services (i) US federal and state privacy laws, including the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA”) and the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations at 34 C.F.R. Part 99 (“FERPA”). (ii) the General Data Protection Regulation ((EU) 2016/679) (“EU GDPR) and (iii) the GDPR as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and the Data (Use and Access) Act 2025 (“UK GDPR”), together with the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended),
1.2 “EU SCCs” means the European Commission’s Standard Contractual Clauses set out in the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual Clauses for the transfer of PII to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as amended or replaced from time to time.
1.3 "PII" means Personal Data.
1.4 “Restricted Transfer” means a transfer of PII where the Customer is based in the EU or the UK which (a) is made between parties to the Agreement or an onward transfer to a Subprocessor; and (b) would be prohibited by Data Protection Legislation in the absence of either a lawful transfer safeguard, e.g. the EU SCCs and UK SCCs.
1.5 “Subprocessor” means any Processor (including any third party and any ETU Affiliate, but excluding an employee of ETU or an employee of any of its sub-contractors) appointed by or on behalf of ETU or any Affiliate to Process PII.
1.6 “UK SCCs” means, as applicable, (i) the EU SCCs as amended by the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner (“UK Addendum”), as amended or replaced from time to time, pursuant to Article 46 of the UK GDPR; or (ii) the UK IDTA as amended or replaced from time to time, pursuant to Article 46 of the UK GDPR.
1.7 “UK IDTA” means the International Data Transfer Agreement to the EU SCCs issued by the Information Commissioner’s Office under section 119A (1) Data Protection Act 2018.
1.8 The terms “Controller”, “Processor”, "Personal Data Breach", “Data Subject”, “Personal Data”, “Process”, “Processing”, “Sell”, “Share”, “Special Category Data”, and “Supervisory Authorities” have the meanings prescribed in the Data Protection Legislation, and cognate terms shall be construed accordingly.
2. Data Protection
2.1 This DPA sets out the additional terms, requirements and conditions on which ETU and its Affiliates will Process PII on behalf of the Customer when providing the Learning Solution and Professional Services under the Agreement.
2.2 Customer is the Controller and ETU is the Processor in respect of PII processed by ETU as part of the Learning Solution and Professional Services. Subject to ensuring compliance with all applicable Data Protection Legislation, each party may Process business contact information relating to personnel of the other (for example name, business telephone number, job title and business email address) to manage the general relationship between ETU and Customer. For those purposes, each party deems that it is acting as an independent Controller and shall at all times, ensure compliance with Data Protection Legislation required of a Controller. The Parties acknowledge that to the extent any PII is processed for ETU's internal analytics, support or troubleshooting purposes, ETU shall act as an independent Controller, and such processing shall be in accordance with its privacy notice which is available on its website.
2.3 In performing their obligations and exercising their rights under the Agreement, each Party shall comply with their respective requirements under applicable Data Protection Legislation.
2.4 The Customer instructs ETU and its Affiliates to process the PII set out in Schedule 2 to this DPA, which sets out the subject matter, nature and purpose of Processing by ETU. The Customer shall ensure that any instructions it issues to ETU/its Affiliates comply with Data Protection Legislation, and that there is no prohibition or restriction which would prevent or restrict ETU/its Affiliates from lawfully Processing the PII in order to provide the Services and as otherwise contemplated by the Agreement and to fulfil its obligations under the Data Protection Legislation.
2.5 If ETU/its Affiliates become aware of any Customer instruction which, in its opinion, infringes Data Protection Legislation, ETU/its Affiliates will notify Customer and Customer will revise its instruction. Customer acknowledges that receiving an unlawful instruction may result in delays in ETU/its Affiliates' ability to perform the Agreement.
2.6 Customer warrants that it shall take all reasonable steps to ensure that any PII provided to ETU (i) has been lawfully collected, including with respect to any consents required to process the PII, (ii) does not contain any Special Category Data unless specifically required to provide the Learning Solution or Professional Services and, (iii) is limited to the minimum PII required for ETU to provide the Learning Solution and Professional Services. Where Customer is unable to do so, it shall notify ETU accordingly, and it is acknowledged that in such instances the categories of PII are determined by the Customer in its sole discretion, and any Processing of such PII forms part of the instructions set out in Section 2.4 of this DPA.
2.7 To the extent ETU Processes, or will Process, PII that is subject to FERPA or state equivalent laws governing student data privacy, ETU will comply with the additional obligations set forth in Schedule 3 to this DPA.
2.8 In relation to any PII Processed on behalf of the Customer in providing the Services, ETU and its Affiliates shall:
(a) Process PII only on written instructions of the Customer, to the extent required to provide the Learning Solution and Professional Services. If ETU/its Affiliates are required by any applicable laws to process the PII it shall, to the extent legally permitted, notify the Customer before doing so;
(b) taking into account the cost of implementation, shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing the PII, including as appropriate: (i) the encryption of PII; (ii) the ability to ensure the confidentiality of processing systems; (iii) the ability to restore access to PII in the event of a physical or technical incident (where ETU is commercially responsible for data back-up); and (iv) a process for testing the effectiveness of security measures;
(c) ensure that persons engaged by ETU/its Affiliates who have access to PII keep the PII confidential (either under documented confidentiality undertakings or professional or statutory obligations of confidentiality);
(d) provide reasonable assistance to the Customer (at the Customer’s request and cost) in dealing with requests from Data Subjects or Supervisory Authorities regarding ETU/its Affiliate's Processing of PII and, taking into account the nature of the Learning Solution and Professional Services, provide reasonable assistance to the Customer, insofar as this is possible, for the fulfilment of the Customer’s obligations under Data Protection Legislation in respect of data security, data breach notification, data protection impact assessments (taking into account the nature of the information available to ETU), and prior consultation with Supervisory Authorities;
(e) notify the Customer without undue delay if it receives a request from a Data Subject to exercise any of their rights under the Data Protection Legislation. If ETU/its Affiliates receives a request from a Data Subject under any Applicable Law regarding PII (“Data Subject Request”), ETU will: (i) promptly redirect the Data Subject to the Customer; and (ii) not respond to that Data Subject Request except on the documented instructions of Customer (at Customer's cost); notify the Customer without undue delay upon becoming aware of a Personal Data Breach, providing Customer with sufficient information to allow Customer to meet its obligations to report or inform Data Subjects of the Personal Data Breach. ETU/its Affiliates' notification under this section will not be construed as an acknowledgement by ETU/its Affiliates of any fault or liability. The Customer will work with ETU/its Affiliates, in good faith, to take into account ETU/its Affiliates' feedback in developing the content of any notices to any Supervisory Authority and/or affected Data Subjects to the extent it could impact ETU/its Affiliates' reputation;
(f) at the written direction of the Customer, delete or return PII to the Customer on termination of the Agreement unless ETU is required by law to store the PII. Provided it ensures compliance with Data Protection Legislation, ETU/its Affiliates may adapt the PII such that a natural person cannot be identified or is not identifiable and use such adapted data strictly for the purposes of development and enhancement of the Learning Solution or Professional Services in accordance with the Agreement and, where applicable, the AI Addendum; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this section and allow for one audit per year by the Customer or the Customer’s designated auditor (at the Customer’s cost), provided that the Customer shall provide reasonable notice of any audit it wishes to carry out and that such audit shall be conducted during ETU’s normal business hours, in a manner that minimises disruption to ETU’s business operations.
2.9 To the extent that ETU Processes any PII on behalf of Customer that is subject to the CCPA, ETU agrees to the following with respect to such PII only: (i) all PII disclosed by Customer to ETU, or that ETU receives or processes on Customer’s behalf, is disclosed or received only for limited and specified purposes, including for one or more “business” or “commercial” purposes as those terms are defined under the CCPA; (ii) ETU shall not Sell, Share, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate PII received from, or on behalf of, Customer to any third party for monetary or other valuable consideration; (iii) ETU shall not retain, use, or disclose PII received from, or on behalf of, Customer: (a) for any purposes other than a business purposes specified in the Agreement, or as otherwise permitted by the CCPA; or (b) outside of the direct business relationship between Customer and ETU; (iv) ETU may combine PII that it receives from, or on behalf of, Customer with PII that ETU receives from, or on behalf of, another person, or collects from its own interaction with an individual, unless the combining of that PII is prohibited by the CCPA. For purposes of this DPA, “combine” means to aggregate PII about an individual into a single profile; (v) if Customer provides ETU with deidentified PII, or if ETU deidentifies PII previously provided by Customer, ETU agrees to take reasonable measures to ensure that the deidentified PII cannot be associated with a consumer or household, and not attempt to reidentify the PII; and (vi) ETU shall promptly notify Customer if ETU determines that it can no longer comply with the CCPA. ETU certifies it understands the obligations and restrictions above and will comply with them.
2.10 The Customer consents to ETU and its Affiliates appointing the Subprocessors set out on ETU's website. ETU/its Affiliates shall ensure all Subprocessors are subject to contractual obligations which ensure the same level of protection as those set out in this clause. ETU shall be generally authorized to engage new Subprocessors by updating this list on its website and if the Customer reasonably objects to the proposed changes within twenty-one (21) days of being notified, the Customer will provide ETU/its Affiliates with a written explanation of the grounds for its objection to permit ETU/its Affiliates to re-evaluate any such new Subprocessor based on the applicable concerns. ETU/its Affiliates will be authorized to appoint any new Subprocessor that the Customer does not object to within that time period. Where processing by a Subprocessor involves a Restricted Transfer, ETU shall ensure the relevant and appropriate modules of the EU SCCs and/or UK SCCs, as applicable, are at all relevant times in place between it/its Affiliates and the Subprocessor.
2.11 Where a Restricted Transfer is between Customer as exporter and ETU/its Affiliate as importer, the Parties shall comply with the terms set out in Schedule 1 to this DPA. The EU SCCs and/or UK SCCs (as amended) made under this DPA come into effect on the later of:
(a) the data exporter becoming a party to this DPA;
(b) the data importer becoming a party to this DPA; and
(c) the commencement of the Restricted Transfer.
Schedule 1 – Restricted Transfers
PART 1: Special Terms for transfers of PII Subject to EU Data Protection Law
1. Where a Restricted Transfer is subject to the EU GDPR, Customer (as “data exporter”) and ETU/its Affiliate (each as “data importer”) the Parties hereby enter into Module 2 of the EU SCCs which are incorporated into this Data Processing Agreement by reference, and, in:
1.1 Clause 7, the optional clause will not apply;
1.2 Clause 9, option 2 will apply, and the time period for prior notice of Subprocessor changes will be in accordance with the notification process set out in Section 2.8 of this DPA;
1.3 Clause 11, the optional redress language will not apply;
1.4 Clause 13, the supervisory authority with responsibility for ensuring compliance by the data exporter with EU GDPR as regards the data transfer shall act as competent supervisory authority;
1.5 Clause 17, option 1 will apply and the EU SCCs will be governed by the laws of Ireland;
1.6 Clause 18, disputes shall be resolved before the courts of Ireland;
1.7 Annexes 1 and 3 will be deemed to be pre-populated with the relevant sections of Schedule 2 to this Data Processing Agreement; and
1.8 Annex 2 of the EU Standard Contractual Clauses will be deemed to be pre-populated with the relevant sections of section 2.7(b) of this DPA.
PART 2: Special Terms for transfers of PII Subject to UK Data Protection Law
2. In respect of any UK Restricted Transfer, the EU SCCs (as incorporated by reference pursuant to Schedule 1 Part 1) shall be read in accordance with, and deemed amended by, the provisions of Part 2 (Mandatory Clauses) of the UK SCCs, and the Parties confirm that the information required for the purposes of Part 1 (Tables) of the UK SCCs is as set out in the Agreement and/or in this DPA.
Schedule 2 – Details of the Processing/Transfer
| Item | Description |
|---|---|
|
Data Exporter |
Name: Customer, as defined in the Agreement. Address: Customer’s address, as defined in the Agreement. Contact person’s name, position and contact details: [INSERT NAME, POSITION AND CONTACT DETAILS] Activities relevant to the data transferred: Processing of Customer PII in connection with the Learning Solution and Professional Services under the Agreement. Role (controller/processor): Controller |
|
Data Importer |
Name: ETU entity whose details are set out in the Agreement. Address: ETU entity address, as defined in the Agreement. Contact person’s name, position and contact details: [INSERT NAME, POSITION AND CONTACT DETAILS] Activities relevant to the data transferred: As set out in the Agreement. Role (controller/processor): Processor |
|
Subject matter and duration of processing |
PII referred to in this Agreement will be processed for the duration of the Agreement. ETU and its Affiliates primarily provide cloud-based learning simulation platform along with certain ancillary services to enterprise and institutional customers. Activities include:
|
|
Nature and purposes of processing |
|
|
Categories of PII and data subjects |
Data Subjects:
Categories of Data:
|
|
Obligations and rights of data controller |
Set out in the Agreement, particularly Sections 2.3 and 2.4 of this DPA. |
|
Frequency of Restricted Transfers (where applicable): |
As necessary under the Agreement and determined by Customer in its sole discretion. |
|
Period for which PII will be Retained (where applicable): |
For the duration of the Agreement and otherwise in accordance with ETU's retention policy. |
Schedule 3 – FERPA and Student Data Protection
This Schedule 3 applies only to the extent ETU Processes Student Data (as defined below), and sets forth the obligations of ETU with respect to the processing of Student Data subject to FERPA, and applicable state student data privacy laws and other comparable state laws governing student data privacy and security (collectively with FERPA, “Student Privacy Laws”).
1. Definitions. For purposes of this Schedule 3, the following additional definitions shall apply:
1.1 “De-Identified Data” means Student Data from which all personally identifiable information has been removed or obscured such that the remaining information does not reasonably identify a specific individual, taking into account reasonably available information.
1.2 “Education Records” has the meaning provided at 34 C.F.R. § 99.3.
1.3 “Eligible Student” means a student who has reached 18 years of age or is attending an institution of postsecondary education.
1.4 “Personally Identifiable Information” or “PII” has the meaning provided at 34 C.F.R. § 99.3 and shall include cognate terms under other applicable Student Privacy Laws where they materially differ from the term provided under FERPA.
1.5 “School Official” means, for purposes of this Schedule 3, a contractor that: (a) performs an institutional service or function for which Customer would otherwise use its own employees; (b) is under the direct control of Customer with respect to the use and maintenance of Student Data including Education Records; and (c) is subject to the requirements of 34 C.F.R. § 99.33(a) governing the use and re-disclosure of PII from Education Records.
1.6 “Student Data” means any data, whether Processed by ETU or provided by, or at the direction of, Customer, students, or students’ parents/guardians that is descriptive of the student, including but not limited to: (a) information in the student’s Education Records; (b) a student’s PII; (c) persistent unique identifiers associated with a student; and (d) any other information by which a student may be individually identified under applicable law.
2. Designation as School Official
2.1 In providing Services under the Agreement that involve the processing of Student Data, ETU shall be considered a School Official with a legitimate educational interest.
2.2 ETU acknowledges that it is performing an institutional service or function for which Customer would otherwise use its own employees and is under the direct control of Customer with respect to the use and maintenance of Student Data.
2.3 ETU shall use Student Data only for authorized purposes and in furtherance of a legitimate educational interest as permitted by this Schedule 3 and applicable Student Privacy Laws.
3. Ownership of Student Data
3.1 All Student Data transmitted to ETU pursuant to the Agreement is and shall remain the property of, and under the control of, Customer. ETU acknowledges that all copies of Student Data, including any modifications, additions, or derivatives thereof, other than De-Identified Data, are subject to the provisions of this Schedule 3 in the same manner as the original Student Data.
3.2 As between the Parties, all rights in and to Student Data shall remain the exclusive property of Customer.
4. Permitted Uses and Restrictions on Disclosure
4.1 ETU shall use Student Data solely for the purpose of providing the Services as described in the Agreement and as otherwise authorized under applicable Student Privacy Laws.
4.2 ETU shall not make any re-disclosure of Student Data other than as directed or permitted by Customer or this Schedule 3. This prohibition shall not apply to: (a) aggregate summaries of De-Identified Data; (b) Student Data disclosed pursuant to a lawfully issued subpoena or other legal process, provided ETU complies with Section 4.4 below; or (c) disclosures to Subprocessors.
4.3 ETU shall not sell, rent, lease, trade, or otherwise transfer Student Data for monetary or other valuable consideration. ETU shall not use, disclose, or permit the use of Student Data to: (a) inform, influence, or enable targeted advertising; (b) develop a profile of a student, family member, or guardian for any commercial purpose other than providing the Services; (c) market or advertise to students or their families; or (d) develop commercial products or services, other than as necessary to provide the Services or to improve the security, functionality, or performance of the Services.
4.4 Should ETU receive any request from law enforcement, a government entity, or other third party for Student Data, ETU shall: (a) redirect the requesting party to seek the data directly from Customer, and (b) notify Customer promptly of such request unless prohibited by law. If ETU is compelled to produce Student Data pursuant to a court order or subpoena, ETU shall promptly notify Customer of the required disclosure and shall provide Customer with a copy of such order upon request.
5. Security Incident Notification
5.1 In the event of a Security Incident affecting Student Data, ETU shall provide to Customer, in addition to the information required under Section 2.8(e) of the DPA, the following to the extent known and as information becomes available:
5.1.1 A description of the types of Student Data affected; and
5.1.2 A list of the students whose Student Data was involved or is reasonably believed to have been involved in the breach, if known.
6. Parent and Student Rights
6.1 ETU acknowledges that parents, legal guardians, and Eligible Students have the right to inspect the student’s Education Records and to request correction of inaccuracies.
6.2 If a parent, guardian, or Eligible Student contacts ETU directly to inspect or copy Student Data, ETU shall refer such individual to Customer and shall not otherwise respond to the request unless instructed by Customer. For avoidance of doubt, if a parent or guardian contacts ETU requesting access to an Eligible Student’s Education Records or Student Data, ETU shall not disclose such data unless instructed by Customer or the Eligible Student and shall refer the parent/guardian to Customer.
6.3 ETU shall respond in a reasonably timely manner to requests from Customer for Student Data held by ETU in order to facilitate inspection, review, or correction by parents or Eligible Students.
6.4 If Customer notifies ETU of a factual inaccuracy in Student Data that requires ETU’s cooperation to correct, ETU shall promptly make such correction.
7. Data Deletion
7.1 ETU shall delete Student Data upon Customer’s direction. Notwithstanding the foregoing, ETU’s obligation to delete Student Data shall not extend to: (a) De-Identified Data; (b) data required to be retained by applicable law; or (c) data placed in a separate student-controlled account at the request of the student or Customer.
8. General Provisions
8.1 In the event of any conflict between this Schedule 3 and the other provisions of the DPA or the Agreement, the provisions of this Schedule 3 shall control with respect to Student Data provided that nothing in this Schedule 3 shall increase ETU's liability beyond the limitations set forth in Section 12 (Limitation of Liability) of the Agreement.
EXHIBIT B — AI ADDENDUM
This Artificial Intelligence Addendum (this “AI Addendum”) forms part of the Software-as-a-Service Agreement (the “Agreement”) entered into between ETU and Customer. This AI Addendum sets forth the specific terms and conditions that apply to the use of AI Tools in connection with the Learning Solution and the provision of Professional Services. Capitalized terms used but not defined in this AI Addendum shall have the meanings given to them in the Agreement.
In the event of any conflict between the provisions of the Agreement and this AI Addendum, the provisions of this AI Addendum shall prevail to the extent of such conflict.
1. Definitions. In addition to the definitions set forth in Section 1 (Definitions) of the Agreement, the following definitions shall apply for the purposes of this AI Addendum:
1.1 “Acceptable Use Materials” means any policies, guidelines, standards, documents, user manuals, specifications, training materials, educational resources, video demonstrations, knowledge-base articles, in-product notices, online resources, or other materials (in each case, in written, visual, audiovisual, electronic, or other digital form) made available by ETU from time to time that set out: (a) the permitted and prohibited uses of any AI Tools; (b) guidance on appropriate use cases and content limitations; (c) applicable legal, regulatory, and compliance requirements; and (d) information intended to assist Customer and its Authorized Users in understanding the capabilities, limitations, and responsible use of the AI Tools.
1.2 “Aggregated or Anonymized Analytics Data” has the meaning given to it in Section 5.1 (Service Improvement) of this AI Addendum.
1.3 “AI” or “Artificial Intelligence” means artificial intelligence, including any system, program, software, or technology that demonstrates the ability to perceive its environment, process data or stimuli, reason, learn from and adapt to experiences, and make decisions or take actions that would otherwise require human intelligence, including (but not limited to) machine learning, algorithms, neural networks, speech and natural language processing, computer vision, robotics, and autonomous systems. AI may operate autonomously or with varying degrees of human input and control.
1.4 “Analytics Data” has the meaning given to it in Section 5.1 (Service Improvement) of this AI Addendum.
1.5 “Applicable AI Legislation” means any laws and regulations (in each case, as amended, supplemented, or replaced from time to time) relating to the provision, development, integration, marketing and/or use of AI systems that apply in the context of the Agreement, including any laws or regulations relating to AI and automated decision-making.
1.6 “Error” means, in relation to an AI Tool, any inaccuracy or error in the AI Tool, including as manifested in the Outputs, that causes a risk of serious harm to the business and/or reputation of Customer, taking into account the intended purpose of the AI Tool.
1.7 “Input” means any information, documents, Customer Data, Customer Learning Content, or any other data directly provided to an AI Tool by Customer or its Authorized Users, or indirectly acquired by the AI Tool, on the basis of which the AI Tool produces an Output.
1.8 “OECD AI Principles” means the AI principles set by the Organization for Economic Co-operation and Development (OECD) in Recommendation OECD/LEGAL/0449, adopted on 22 May 2019 and updated on 3 May 2024 (as may be further amended from time to time).
1.9 “Output” means any predictions, content (including text, images, photos, videos, graphics, audio, or simulated learning scenarios), recommendations, or decisions generated by an AI Tool.
1.10 “Third-Party AI Components” means any third-party AI models or services incorporated into the Learning Solution.
1.11 “Training Data” means any data used for training an AI Tool through fitting its learnable parameters, including data used for testing, validation, and fine-tuning.
2. Scope and Acknowledgement
2.1 Acknowledgement of AI Tools. Customer acknowledges that the Learning Solution incorporates AI Tools, and that certain features and functionalities of the Learning Solution (including, without limitation, content generation, media creation, simulation development, and other AI-enabled capabilities) may rely on AI to generate Outputs. Customer expressly authorizes ETU to use AI Tools in the provision of the Learning Solution and Professional Services in accordance with this AI Addendum.
2.2 Oversight and Updates. ETU maintains oversight of the AI Tools used within the Learning Solution and retains the ability to update, modify, or replace models as needed to support security, performance, compliance, or operational requirements, subject to Section 12.3 (ETU Suspension and Modification Rights) of this AI Addendum. ETU shall notify Customer of any material changes to the AI Tools that ETU determines will have a significant impact on the Learning Solution.
3. Permitted and Prohibited Uses
3.1 Permitted Use. Customer and its Authorized Users may use the AI Tools solely as part of the Learning Solution for Customer’s internal business purposes in accordance with the Agreement and any Acceptable Use Materials.
3.2 Prohibited Uses. Without limiting Section 2.2 (Restrictions on Use) of the Agreement, Customer shall not (and shall ensure that its Authorized Users do not) use the AI Tools or any Output for any purpose that: (a) could pose a threat to the rights or safety of any natural person; (b) is classified as a prohibited practice under Applicable AI Legislation; (c) exploits any vulnerabilities of a natural person or a specific group of persons due to their age, disability, or a specific social or economic situation, with the objective or effect of materially distorting the behavior of that person in a manner that causes or is reasonably likely to cause significant harm; (d) evaluates or classifies natural persons based on social behavior or personal characteristics leading to detrimental or disproportionate treatment; (e) manipulates behavior to cause harm; (f) is otherwise not compliant with Applicable AI Legislation or applicable consumer protection or data protection laws; and / or (g) is not intended for the purpose of performing the Agreement.
3.3 Customer Responsibilities. Customer warrants that: (a) it will use the AI Tools only for their intended purpose and at all times in compliance with applicable laws, including Applicable AI Legislation; (b) it will ensure that its Authorized Users assigned to the management and use of the AI Tools are sufficiently literate on AI risks and compliance with applicable laws, and will evaluate, review, and exercise requisite caution when using the Learning Solution; (c) where applicable, it will include appropriate disclosures, notices, or watermarks for AI-generated Output as required by ETU or Applicable AI Legislation; and (d) it will not assign to any AI Tool a purpose that constitutes a prohibited use under Section 3.2 (Prohibited Uses) of this AI Addendum.
3.4 Acceptable Use Materials. ETU may maintain and make available to Customer Acceptable Use Materials which may be updated by ETU from time to time to reflect changes in the AI Tools, Applicable AI Legislation, or industry best practices. ETU shall notify Customer of any material updates to the Acceptable Use Materials, including by publication within the Learning Solution, via ETU’s customer portal, or by other reasonable written notice. Customer shall comply with, and shall ensure that its Authorized Users are made aware of and comply with, the Acceptable Use Materials in their use of the AI Tools and any Outputs.
4. Data Inputs and Restrictions
4.1 Input Restrictions. The restrictions on Customer Data set forth in Section 10.6 (Restricted Data) of the Agreement shall apply with equal force to any Input provided to the AI Tools. Without limiting the foregoing, Customer shall not (and shall ensure that its Authorized Users do not) provide as Input to any AI Tool any: (a) sensitive PII or special categories of PII; (b) PII relating to criminal convictions and offenses; (c) PII of children, unless expressly agreed in writing by ETU and subject to appropriate safeguards; or (d) any data, code, scripts, prompts, or other Inputs that are intended to, or are likely to, disrupt, manipulate, degrade, probe, or otherwise interfere with the operation, integrity, performance, security, or intended functioning of the AI Tools, including attempts to circumvent safeguards, extract underlying models or parameters, or cause the AI Tools to operate outside their intended purpose or contrary to the Acceptable Use Materials or applicable laws, including Applicable AI Legislation.
4.2 Customer Responsibility for Inputs. Customer is solely responsible for verifying and ensuring that it has the necessary rights, consents, and authorizations to use any information as Input, including compliance with applicable data protection legislation. ETU disclaims any liability arising from Customer’s failure to obtain such rights, consents, or authorizations.
4.3 Confidential Information in AI Tools. Customer acknowledges that any Input provided to an AI Tool may be processed by the AI Tool in accordance with this AI Addendum. Customer shall exercise appropriate caution before submitting Confidential Information as Input and shall not submit any third-party confidential information to any AI Tool without ensuring that such submission is permitted under the relevant confidentiality obligations owed by Customer to such third party.
4.4 Data Security. While using the AI Tools, all Customer Data is encrypted both in transit and at rest using industry-standard encryption. AI interactions are logged and monitored by ETU to support security auditing, troubleshooting, and responsible usage.
5. Service Improvement and Third-Party Warranties
5.1 Service Improvement. When Customer (including its Authorized Users) uses or interacts with the Learning Solution (including any Learning Module), the Learning Solution will collect data pertaining to the performance of the Learning Solution and the processing of Customer Data and Customer Learning Content (“Analytics Data”). Subject to Customer's prior consent, ETU may use Analytics Data, Customer Data and Customer Learning Content to improve AI Tool(s), including to improve the predictive, analytical, or other capabilities and output of the AI Tool(s) used in the Learning Solution to improve the Learning Solution and Professional Services. Notwithstanding the foregoing, ETU may collect and use aggregated or anonymized usage and interaction data derived from Customer’s use of the Learning Solution (such as completion rates, time-on-task metrics, feature utilization patterns, and similar behavioral analytics) (“Aggregated or Anonymized Analytics Data”) for ETU's own purposes.
5.2 Third-Party AI Component Warranties. ETU warrants that: (a) to the extent the AI Tools incorporate or rely on Third-Party AI Components, ETU has contractually obtained the right to use such models for the purposes envisaged by the Agreement, including the processing of Inputs and generation of Outputs; and (b) it has entered into written agreements or appropriate license terms with any third-party providers or Subcontractors supplying Third-Party AI Components of the Learning Solution, which applicable third-party provider terms include contractual protections in respect of third-party intellectual property infringement claims arising from the authorized use of the relevant Third-Party AI Components.
6. Intellectual Property Rights
6.1 Ownership of Outputs. As between the Parties, and subject to Section 3 (Intellectual Property Ownership) of the Agreement, any Output that forms part of a Learning Module shall be treated in accordance with Section 3.2 (Ownership of Learning Modules) of the Agreement. Any Output that forms part of Customer Learning Content shall remain the property of Customer in accordance with Section 10.1 (Ownership of and Rights to Customer Data and Customer Learning Content) of the Agreement.
6.2 No Warranty of Uniqueness. Customer acknowledges that Outputs may not be unique and that other customers of ETU may receive similar or identical Outputs. ETU does not warrant that any Output will be original, novel, or capable of protection under any Intellectual Property Rights regime.
6.3 ETU Ownership of AI Tools. ETU is and shall remain the sole and exclusive owner of all right, title, and interest in and to the AI Tools (including any improvements, modifications, or derivative works thereof), the Training Data, and all Intellectual Property Rights relating thereto.
6.4 ETU Ownership of Analytics Data. Customer agrees and acknowledges that, as between Customer and ETU, ETU owns all right, title, and interest, in and to the Analytics Data and Aggregated or Anonymized Analytics Data in perpetuity for use subject to Section 5.1 (Service Improvement) of this AI Addendum.
7. Accuracy, Reliability, and Human Oversight
7.1 Nature of AI Outputs. Customer acknowledges and agrees that, due to the inherent nature and unpredictability of AI, AI Tools are provided on a best-effort basis and ETU does not guarantee the completeness, accuracy or suitability of the Outputs or that Outputs would meet Customer’s individual requirements, be free from bias or discrimination, or fit for any particular purpose.
7.2 Human Oversight. Customer shall implement and maintain appropriate procedures for human review and oversight of all Outputs before any such Outputs are deployed, published, distributed, or otherwise relied upon. Output is designed to support and streamline human activities and does not remove human decision-making capabilities. Customer acknowledges that the AI Tools within the Learning Solution are not designed to entirely replace human judgment and that Customer is solely responsible for reviewing, validating, and approving all Outputs for accuracy, suitability, and compliance with applicable laws before use. Outputs should be reviewed and validated before being relied upon for operational, business, or decision-making purposes.
7.3 ETU Obligations. ETU shall use reasonable efforts, consistent with the nature and purpose of the Learning Solution and the capabilities of any Third-Party AI Component to: (a) configure and operate the AI Tools in a manner intended to support a reasonable level of accuracy and reliability of Output; (b) take reasonable measures within ETU's control to mitigate the risks of Errors from the use of the AI Tools; (c) regularly monitor and assess the AI Tools for Errors, potential misuse, unexpected behavior, or security risks; (d) promptly notify Customer of any Error of which ETU becomes aware that has or is reasonably likely to have a material adverse impact on Customer’s use of the Learning Solution; and (e) continuously evaluate and improve (where appropriate) AI-enabled features to support quality, safety, and reliability within the Learning Solution.
8. Bias and Non-Discrimination
8.1 ETU Commitment. ETU acknowledges and affirms its commitment to supporting responsible and non-discriminatory use of the AI Tools. In particular, ETU shall use reasonable efforts, within its control, to: (a) mitigate the risk of unlawful discrimination or bias in the development, training, fine-tuning, deployment, and ongoing use of the AI Tools; (b) comply with all Applicable AI Legislation relating to discrimination, bias, equal opportunity, and human rights; and (c) regularly monitor and assess the AI Tools for potential discriminatory or biased Outputs or Errors.
8.2 Notification and Remediation. If any issues relating to bias, discrimination, accuracy, or Errors are identified by either Party, the identifying Party shall promptly notify the other Party in writing. ETU shall, at no additional charge, investigate and take appropriate remedial action to rectify or mitigate the impact of such issues. Customer agrees to cooperate with ETU in good faith to address any identified issues, upon reasonable request, by providing relevant information or feedback to assist in their resolution.
9. LIABILITY AND DISCLAIMERS
9.1 DISCLAIMER. WITHOUT LIMITING SECTION 9.4 (DISCLAIMER OF WARRANTIES) OF THE AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AI TOOLS AND ALL OUTPUTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ETU MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE AI TOOLS OR ANY OUTPUT, INCLUDING ANY WARRANTY OF ACCURACY, COMPLETENESS, RELIABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE AI TOOLS OR OUTPUTS WILL BE FREE FROM BIAS, DISCRIMINATION, OR ERROR.
9.2 EXCLUSION OF LIABILITY FOR AI OUTPUTS. SUBJECT TO SECTION 9.4 BELOW AND WITHOUT LIMITING SECTION 12 (LIMITATION OF LIABILITY) OF THE AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ETU BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOST, DAMAGED, OR CORRUPTED DATA, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO: (A) THE ACCURACY, COMPLETENESS, RELIABILITY, OR SUITABILITY OF ANY OUTPUT; (B) CUSTOMER’S (OR ANY AUTHORIZED USER’S) RELIANCE ON ANY OUTPUT WITHOUT APPROPRIATE HUMAN REVIEW AND VALIDATION IN ACCORDANCE WITH SECTION 7.2 (HUMAN OVERSIGHT) OF THIS AI ADDENDUM; (C) ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER OR ANY THIRD PARTY ON THE BASIS OF ANY OUTPUT; OR (D) ANY OUTPUT THAT INFRINGES, OR IS ALLEGED TO INFRINGE, THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.3 Liability Cap. For the avoidance of doubt, any liability of ETU arising under or in connection with this AI Addendum shall be subject to the limitations set forth in Section 12 (Limitation of Liability) of the Agreement.
10. Compliance with Applicable Laws
10.1 General Compliance. Each Party undertakes to comply with all Applicable AI Legislation to the extent applicable to its role and obligations under this Agreement. ETU shall use reasonable efforts to anticipate the entry into application of upcoming Applicable AI Legislation and adopt a proactive approach for compliance therewith.
10.2 OECD AI Principles. ETU represents that the AI Tools have been developed, tested, and made available, and that they are monitored, taking into account the OECD AI Principles.
11. Transparency
11.1 Transparency Obligations. ETU shall, upon Customer’s reasonable written request (and subject to ETU’s reasonable confidentiality and security requirements), provide Customer with: (a) a description of the AI Tools used in connection with the Learning Solution and their intended purpose, key functionalities and instructions for use (excluding any proprietary information, source code, algorithms, or trade secrets); and (b) details of the types of data processed by the AI Tools.
11.2 Synthetic Content Disclosure. Where the AI Tools generate synthetic content (including text, images, video, or audio), ETU shall use reasonable efforts to ensure that such content is capable of being identified as AI-generated, including (where technically feasible and required by Applicable AI Legislation) through machine-readable markers or metadata.
12. Warning Obligations and Suspension
12.1 Notification Obligations. ETU shall notify Customer in writing as soon as reasonably practicable (and in any event no later than fifteen (15) calendar days) after becoming aware of: (a) any circumstances giving rise to a reasonable suspicion that any AI Tool used in the Learning Solution has become prohibited, is no longer in conformity with Applicable AI Legislation, or has undergone a change in risk classification or categorization under Applicable AI Legislation such that different or additional regulatory obligations may apply; or (b) any request for modification, suspension or cessation from a competent authority or regulator in relation to any AI Tool.
12.2 Customer Suspension Rights. In the event that it becomes apparent to Customer that any AI Tool is non-compliant with Applicable AI Legislation or has caused (or is reasonably likely to cause) harm to Customer, its customers, Authorized Users, or any individual, Customer shall have the right to request that ETU disable or restrict the relevant AI Tool functionality within the Learning Solution. ETU shall use reasonable efforts to comply with any such request promptly and without undue delay.
12.3 ETU Suspension and Modification Rights. Notwithstanding any other provision of this AI Addendum or the Agreement, ETU may, in its sole discretion and without liability to Customer: (a) suspend, disable, or restrict access to any AI Tool (in whole or in part) at any time if ETU reasonably believes that: (i) continued use of such AI Tool poses a risk of non-compliance with Applicable AI Legislation or any other applicable law; (ii) such AI Tool poses a security, safety, or reputational risk to ETU, Customer, or any third party; (iii) a third-party provider or Subcontractor of any Third-Party AI Component has suspended, discontinued, or materially modified its services; or (iv) suspension is necessary to perform maintenance, updates, or improvements to the AI Tools or the Learning Solution; and (b) modify, update, or replace any AI Tool or its functionality at any time, provided that any such modification does not materially diminish the core functionality of the Learning Solution. ETU shall notify Customer as soon as reasonably practicable of any suspension under this Section 12.3 (ETU Suspension and Modification Rights), and shall use reasonable efforts, taking into account third-party dependencies, to restore access to the affected AI Tool functionality promptly following resolution of the relevant issue, where applicable. Where any suspension, modification, update, or replacement of an AI Tool is reasonably expected to materially affect the core functionality of the Learning Solution, ETU shall notify Customer in advance of such change (where practicable) and consult in good faith with Customer with a view to minimizing any material adverse impact on Customer’s use of the Learning Solution.
13. Third-Party AI Models
13.1 Use of Third-Party AI Components. Customer acknowledges that certain AI Tools incorporated in the Learning Solution may rely on Third-Party AI Components. ETU shall ensure that: (a) the use of any Third-Party AI Components is in accordance with the applicable written agreement and / or license terms and that such terms do not conflict with ETU’s obligations under this AI Addendum in any material respect; and (b) third-party providers or Subcontractors that ETU uses are subject to security and compliance reviews that are proportionate to the nature of the Learning Solution and meet enterprise-grade security standards before being used in the Learning Solution.
13.2 Responsibility for Third-Party AI Components. ETU shall remain fully responsible for the performance of its obligations under this AI Addendum notwithstanding its use of any Third-Party AI Components, save that ETU shall not be liable for any failure of a Third-Party AI Component to the extent that such failure is caused by factors outside ETU’s control, including unilateral changes to third-party services. ETU shall notify Customer promptly if any Third-Party AI Component is discontinued, materially modified, or suspended by the relevant third-party provider in a manner that materially affects the Learning Solution in accordance with Section 12.3 (ETU Suspension and Modification Rights) of this AI Addendum.
13.3 Future AI Model Capabilities. ETU may, in its discretion, develop future capabilities that allow Customer to use its own approved AI models within the Learning Solution, subject to ETU’s security, compliance, and technical requirements. Any such capability shall be subject to the terms of a separate written agreement between the Parties.
14. Regulatory Changes
14.1 Amendment for Regulatory Changes or Solution Change. The Parties acknowledge that the regulatory landscape for AI is evolving. In the event of a material change in Applicable AI Legislation that requires amendment to this AI Addendum, the Parties agree to meet promptly and negotiate in good faith such amendments as may be necessary to ensure continued compliance.
14.2 Updates by ETU. ETU may update this AI Addendum from time to time to reflect changes in Applicable AI Legislation or the Learning Solution, provided that: (a) ETU gives Customer not less than thirty (30) days’ prior written notice of any material changes; and (b) if Customer objects to any such change on reasonable grounds (including that the change materially and adversely affects Customer’s rights or obligations), the Parties shall discuss the objection in good faith with a view to reaching an agreed resolution. Customer’s continued use of the Learning Solution following the effective date of any update to this AI Addendum shall constitute acceptance of such updated terms, unless Customer has notified ETU of its objection in accordance with this section.
15. Survival
15.1 Surviving Provisions. Sections 1 (Definitions), 5 (Training Data Restrictions), 6 (Intellectual Property Rights), 7 (Accuracy, Reliability, and Human Oversight), 9 (Liability and Disclaimers), and 11 (Transparency) of this AI Addendum shall survive termination or expiration of the Agreement for any reason.