Terms and Conditions of Use
Last updated: April 7, 2023
By accessing the website, located at https://cpsp.getlearnworlds.com/ (the “Site”), you (the “Customer”) are agreeing to be bound by these Terms and Conditions of Use (these “Terms”). If you do not agree with any of these Terms, you are prohibited from using or accessing the Site.
1. Grant of License.
1.1 Brain Gain Recruiting, LLC d/b/a Sourcing Certification (“Sourcing Certification”) hereby grants to Customer the nontransferable and nonexclusive right to permit Customer, and its Authorized Users, if any, to remotely access and use Sourcing Certification’s recruitment and sourcing of online training services (the “Service”) solely for Customer’s own internal business purposes as permitted by these Terms.
1.2 Customer shall not license, sell, rent, outsource or otherwise make the Service available to third parties other than Authorized Users. Customer shall be responsible for the acts and omissions of Authorized Users as if they were the acts and omissions of Customer. A license for an Authorized User shall not be transferred from one individual to another unless the original user no longer requires and is no longer permitted access to the Service, and then only on written notice to Sourcing Certification.
1.3 The Service may contain links to external websites and/or information provided on such external websites by Sourcing Certification’s licensors and third-party service providers. Sourcing Certification shall not be responsible for the contents of any linked website or information, nor for any damage or loss caused by Customer’s use of or reliance on any content, goods or services available on or through any such linked websites.
2. Services. Customer can either purchase Services through purchasing attendance at a class conducted through a webinar, a program, which is a series of webinars, taught during the course of several days, or a certification course. Purchase of such class or program includes materials presented during each class or program, such as slides, presentations, as well as video recordings of each class or programs. Customers who are unable to attended a class or a program can purchase a recording thereof through the Service. In addition, the Services can be purchased via a yearly subscription to the Services, which shall provide a yearly access to classes and programs conducted via the Services, as well as any recordings made available through the Services.
3. Fees and Payment Terms. Customer shall pay Sourcing Certification all fees for the Services in accordance with the amounts set forth on the Pricing Page. Fees are payable at the time of purchase. Any yearly subscription to the Services shall be renewed automatically unless Customer provides notice of non-renewal at least thirty (30) days prior to the date of renewal. Fees are payable in US Dollars, and do not include taxes now or hereafter levied, all of which shall be for Customer’s account. Customer may not withhold or reduce fees or set off any amount against fees owed for alleged defects in the Service. All fees not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law. All purchased Services are non-refundable.
4. Customer’s Obligations. Customer shall not, and shall ensure that its Authorized Users do not: (a) translate, decompile, reverse-engineer or otherwise modify any parts of the Service; (b) copy and store the products without Sourcing Certification’s prior written consent (unless the product is download-able, by nature of the Services that Customer had chosen); (c) infringe the intellectual property rights of any entity; (d) interfere with or disrupt the Service or equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (e) circumvent the user authentication or security of the Service; (f) make any use of the Service that violates any applicable local, state, national, international or foreign law; or (g) except for licenses provided to Authorized Users as permitted in these Terms, allow any third party to use any user identifications or passwords issued to or selected by Customer for access to the Service.
5. Proprietary Rights.
5.1 Sourcing Certification or its licensors own all right, title and interest in the Service and in the content provided on the Service, as well as any improvements, design contributions or derivative works in or to the Service conceived or created by either Party. All rights not expressly granted to Customer in these Terms are reserved by Sourcing Certification and its licensors.
5.2 Sourcing Certification’s and its licensors’ logos, and other trademarks, service marks, and graphics used in connection with the Service are owned exclusively by Sourcing Certification and/or its licensors, as applicable. Other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. Customer is granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
6. Term and Termination.
6.1 Subject to the rights of termination set forth below, these Terms shall commence on the date set forth on the cover page and continue until terminated by either Party. The term shall be extended on an annual basis on written agreement of the parties.
6.2 Either Party may terminate these Terms with immediate effect by notice to the other Party at any time if: (a) the breaching Party is in breach of a material obligation under these Terms and, if the breach is capable of remedy, has failed to remedy the breach within fourteen (14) days of receipt of notice from the non-breaching Party giving particulars of the breach and requiring the breaching Party to remedy the breach; or (b) the breaching Party files a petition, or is the subject of a petition, in bankruptcy or ceases doing business in the ordinary course; or (c) the breaching Party transfers more than 50% of its assets to another entity.
6.3 Without prejudicing Sourcing Certification’s right to avail of any other legal remedy or grounds of termination under these Terms, Sourcing Certification reserves the right to temporarily suspend the Service or terminate these Terms if Customer does not use unique logins for each Named User accessing the Service.
7. Sourcing Certification’s Service Level Commitment. Sourcing Certification provides a 99% uptime guarantee on avail-ability of the Service. In any given month, if the Service is unavailable for more than 1% of the time, not counting downtime for remedial or preventative maintenance, Internet outages or other issues outside of Sourcing Certification’s reasonable control, Customer may request a pro-rated credit for the downtime.
8. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, SOURCING CERTIFICATION DOES NOT MAKE ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SOURCING CERTIFICATION SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES AND ANY OTHER MATERIAL ARE PROVIDED BY SOURCING CERTIFICATION ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 8, SOURCING CERTIFICATION MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; OR (d) BE ERROR FREE.
9. Limitation of Sourcing Certification’s Liability.
9.1 Subject to the provisions of Section 8, Customer’s sole and exclusive remedies for any damages or loss in any way connected with the Service, whether due to Sourcing Certification’s negligence or breach of any other duty, shall be, at Sourcing Certification’s option: (i) to bring the performance of the Service into compliance in all material respects with its functional specifications; or (ii) return of an appropriate portion of any payment made by Customer with respect to the affected portion of the Service.
9.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 9: (a) IN NO EVENT SHALL SOURCING CERTIFICATION, ITS AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THESE TERMS; AND (b) IN NO EVENT SHALL SOURCING CERTIFICATION’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THESE TERMS EXCEED THE FEES PAID TO SOURCING CERTIFICATION BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF SOURCING CERTIFICATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS SECTION 8 ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THESE TERMS AND THE PRICING FOR THE SERVICES.
10. Indemnification by Customer. Customer shall indemnify and hold Sourcing Certification harmless from third-party claims arising from or related to any use of the Service (a) in breach of these Terms, (b) in contravention of any requirements, procedures, policies or regulations of Sourcing Certification or its third-party providers applicable to the Service and made known to Customer, and (c) in violation of any applicable law or regulation or in violation of the legal rights of others.
11. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations to make payments), when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of these Terms; or national or regional emergency (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
12. Governing Law. Except to the extent the issue arising under these Terms is governed by United States federal law, these Terms shall be governed by and construed and enforced in accordance with the laws of the State of California, without giving effect to the choice of law rules of that State. Any legal action or proceeding arising under or relating to these Terms shall be brought exclusively in the state or federal courts located in Santa Clara County, State of California, USA, and the parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms.
13. Notices. Subject to change pursuant to this Section: (a) Sourcing Certification’s physical address for notices is at 201 Vista Heights Road, El Cerrito, CA 94530, and its email address for notices is [email protected] and (b) Customer’s physical and email addresses for notices are those associated with its Account. Notices required or permitted to be given under these Terms shall be in writing and shall be deemed to be sufficiently given: (i) one (1) business day after being sent by overnight courier to the Party’s physical address; (ii) three (3) business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one (1) business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable action must be sent by courier or mail). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.
14. Miscellaneous. These Terms are the complete and exclusive statement of the agreement between the parties and supersedes all proposals, questionnaires and other communications and agreements between the parties (oral or written) relating to the subject matter of these Terms. Any terms and conditions of any other instrument issued by Customer in connection with these Terms which are in addition to, inconsistent with or different from the terms and conditions of these Terms shall be of no force or effect. Additionally, these Terms supersede any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the parties with respect Customer’s evaluation of the Services or otherwise with respect to the Services. Except as otherwise provided in Section 14, these Terms may be modified only by a written instrument duly executed by authorized representatives of the parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of these Terms shall not be construed as a waiver of any other condition, term or provision. If any provision of these Terms is held invalid or unenforceable, the remainder of these Terms shall continue in full force and effect. The headings in these Terms are for reference only and shall not affect the interpretation of these Terms. For purposes of these Terms, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
15. Changes. Sourcing Certification may modify these Terms at any time by posting a revised version at https://cpsp.getlearnworlds.com/terms, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted. If Customer objects to the updated Terms, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew.
Capitalized terms not otherwise defined in these Terms shall have the respective meanings assigned to them in this Section 15.
“Account” means the account Customer creates for the administration and usage of the Services.
“Authorized User” means an individual employee, agent or contractor of Customer, who has been granted access to the Account.
“Party” means each of Sourcing Certification or Customer.
“Pricing Page” means the publicly available webpage(s) where Sourcing Certification lists various classes, programs, and recordings, available through the Services, as well the pricing of each, currently available at https://cpsp.getlearnworlds.com/courses.