For employers that are integrating Udacity subscription Courses into their corporate educational programs, these terms set forth the means by which your employees may receive access to the Udacity platform and offerings, and the terms and conditions for its provision (also referred to as the "Agreement").
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR EXECUTING A KEY TERMS SCHEDULE, ORDER FORM OR OTHER ORDER DOCUMENT REFERENCING THIS AGREEMENT; FURTHER, BY PROVIDING YOUR ACCESS TO THE SERVICES TO YOUR EMPLOYEES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT PARTICIPATE IN UDACITY’S SERVICES OR OFFERINGS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
For purposes of these terms, and your access, you, the employer shall be referred to as the "Customer." The terms and conditions found herein are intended for incorporation by reference into the invoice, purchase order or other ordering document if entered into between Udacity and Customer or provided to Customer.
1. INTRODUCTION. Udacity provides access to its Online Courses through the Udacity Platform. Customer may purchase Course Subscriptions to Online Courses for enrollment and access by its users. Those users register as Students with Udacity and Udacity provides Online Course access directly to them. Customer may track its Students’ progress in Online Courses through Performance Data provided by Udacity.
"Course Materials" means materials made available by Udacity in connection with an Online Course, including course descriptions, course videos, interactive features, student projects or other content.
"Course Subscription" means access to the Online Courses as specified on the applicable Order Form during the applicable Course Subscription Term.
"Course Subscription Start Date" means the start date for a Course Subscription designated on the applicable Order Form.
"Course Subscription Term" means the duration of Online Course access designated on the applicable Order Form beginning on the Course Subscription Start Date.
"Online Course" means an online learning program for a specific topic consisting of (i) Course Materials, (ii) access to tools for online collaboration between Students and other enrollees and (iii) online feedback and coaching from Udacity-selected course instructors, mentors and/or reviewers. Online Courses may be provided through the Udacity Platform, Third-Party Tools or other means designated by Udacity.
"Performance Data" means usage statistics and other meta data regarding a Student’s interaction with Online Courses that Udacity makes available to Customer from time-to-time (which may include information on overall progress, assessment results, percent completion, projects submitted, project review results, number of communications with instructors or similar information).
"Registration Data" has the meaning set forth in Section 3.2(b) (Registration Data) below.
"Reports" has the meaning set forth in Section 3.3(a) (Performance Data) below.
"Student" means a named enrollee in an Online Course.
"Student Data" means any data, information, content or materials collected or received from a Student, including as provided through the registration process or while interacting with an Online Course.
"Third-Party Tools" means third-party messaging, communication or other services used by Students in connection with Online Courses, further described in Section 3.4.
"Udacity Platform" means the Udacity online learning platform accessible through http://www.udacity.com or any other sites or services identified by Udacity from time-to-time.
3. ONLINE COURSES.
3.1 Provision of Online Courses. Customer shall purchase and Udacity shall provide Course Subscriptions as specified on the applicable Order Form. In order to keep the subject matter of Online Courses current, Udacity reserves the right to make changes to the content of any Online Course at any time, in its sole discretion.
3.2 Enrollment in Online Courses.
a) Customer Selection of Students. Customer chooses which of its users may enroll as Students for a Course Subscription. Students must be identified by name and may be Customer’s employees or contractors designated by Customer. Each Course Subscription is limited by the number of concurrent Students specified in the applicable Order Form. No more than once per month per concurrent Student seat (unless otherwise expressly agreed by Udacity), Customer may transfer registration from a current Student to a different Student within the transfer period specified in the applicable Order Form by notifying Udacity in writing (or if available, via the administrative features of the Udacity Platform).
b) Registration Data. Customer must provide Udacity the name and email address of each Student (“Registration Data”). Udacity may use Registration Data in order to contact Students for the Online Course enrollment process. Customer is responsible for ensuring that it has obtained all necessary consents to provide Registration Data to Udacity for its use as authorized hereunder and that such use will not violate any applicable laws or regulations or agreements between Customer and such Students.
c) Udacity User Terms. Each Student must register with Udacity and agree to the Udacity User Terms in order to access and use an Online Course. Each Student’s continued participation in an Online Course is subject to compliance with the Udacity User Terms and any related completion requirements specified by Udacity. Udacity may terminate a Student’s enrollment for failure to comply with such terms at any time. No refund will be issued for non-completion of an Online Course.
d) Assessment Surveys. Potential Students may be required to submit an assessment survey prior to the applicable Course Subscription Start Date. A Student’s responses on the assessment survey will be Student Data. Udacity’s assessment and scoring of a Student’s completed survey will be Performance Data. Udacity reserves the right to decline the enrollment of any potential Student based on survey results and Customer may select a different potential Student in accordance with Section 3.2(a) (Selection of Students) above. If Udacity enables Customer to issue additional assessment surveys Customer may not do so more than one time per month per Student. Customer acknowledges that not all Online Courses include assessment surveys and tools; Customer is responsible for inquiring whether assessment tools are available.
3.3 Data and Reporting.
a) Performance Data. Udacity will provide Customer with reports containing Performance Data regarding its Students in the format and with the frequency specified in the applicable Order Form (“Reports”). Notwithstanding the foregoing, Udacity is not required to provide Performance Data to the extent Udacity reasonably determines that providing such data would violate any Udacity User Terms or an opt-out request from a particular Student. Customer may use Performance Data solely for its internal business purposes, but in any event, will immediately cease using Performance Data upon notice from Udacity that Udacity no longer has consent to such sharing.
b) Student Data. Udacity may use any Student Data in accordance with the Udacity User Terms. For clarity, Student Data is not considered Registration Data. Furthermore, Udacity has no obligation to provide, and Customer has no right to receive, any Student Data under the Agreement. For clarity, although Customer may receive Performance Data pursuant to Section 3.3(a) above that may relate to Students’ interaction with Online Courses, Customer has no right to receive Student Data in the form submitted by Students under the Agreement.
c) Student Sharing. Customer acknowledges that some interactions of Students with Online Courses may be public or shared with other enrollees in Online Courses. Customer is responsible for establishing its own policies (if any) with Students as to what information is appropriate to share as part of participation in an Online Course.
3.4. Third-Party Tools. Udacity may utilize Third-Party Tools (including, for example, Slack, GitHub or YouTube) to deliver elements of Online Courses. While using Third-Party Tools Students may be subject to such providers’ terms and conditions, and, in any event, Udacity is not responsible for the operation of, or any changes to, Third-Party Tools or the acts or omissions of Third-Party Tool providers.
4. CUSTOMER OBLIGATIONS. Udacity’s provision of Online Courses is dependent on Customer identifying suitable Students and ensuring that such Students have sufficient time allocated in their schedules to complete Online Courses prior to the end of the applicable Course Subscription Term. Customer acknowledges that Udacity is not responsible for any Student not completing an Online Course during the applicable Course Subscription Term. Customer agrees to comply with any additional requirements related to Online Courses set forth in the applicable Order Form.
5. FEES & PAYMENT. All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 7 (Limited Warranty), and Section 10 (Indemnification), all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Udacity. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
6. TERM AND TERMINATION.
6.1. Term. The Agreement (including these Enterprise Subscription Terms) is effective as of the Effective Date and expires on the date of expiration or termination of all Course Subscriptions.
6.2. Termination for Cause. Either party may terminate the Agreement (and all related Order Forms) if the other party (a) fails to cure any material breach of the Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3. Effect of Termination. Upon any expiration or termination of the applicable Course Subscription Term or the Agreement, Customer shall immediately cease any and all use of and access to Udacity Materials made available in connection with the applicable Course Subscription, including the Udacity Platform and any Online Course. Customer acknowledges that following termination it shall have no further access to any Udacity Materials, and that Udacity may delete any such data as may have been stored by Udacity at any time. Furthermore, Customer acknowledges that upon any expiration or termination of a Course Subscription, Students will not be able to access or complete any Online Course in progress. Except where an exclusive remedy is specified, the exercise of either party of any remedy under the Agreement, including termination, will be without prejudice to any other remedies it may have under the Agreement, by law or otherwise.
6.4. Survival. The following Sections shall survive any expiration or termination of the Agreement: 3.2(c) (Udacity User Terms), 3.4 (Customer Obligations), 5 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 8.1 (Udacity Materials), 9 (Limitation of Remedies and Damages), 10 (Indemnification), 11 (Confidential Information) and 13 (General Terms).
7. LIMITED WARRANTY.
7.1. Limited Warranty. Udacity warrants, for Customer’s benefit only, that it will provide the Online Courses in a professional manner in substantial accordance with the descriptions set forth on the applicable Order Form. Udacity’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Udacity to use commercially reasonable efforts to correct the reported non-conformity, or if Udacity determines such remedy to be impracticable, either party may terminate the applicable Course Subscription and Customer shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Course Subscription for the terminated portion of the applicable Course Subscription. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (ii) to access to Online Courses provided on a no-charge or evaluation basis.
7.2. Warranty Disclaimer.
A) EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, ALL ONLINE COURSES AND PERFORMANCE DATA ARE PROVIDED “AS IS”. NEITHER UDACITY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. UDACITY DOES NOT WARRANT THAT CUSTOMER’S OR ANY STUDENT’S USE OF ANY ONLINE COURSE WILL BE UNINTERRUPTED OR ERROR-FREE. UDACITY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF UDACITY. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
B) UDACITY DOES NOT REPRESENT OR WARRANT THAT THE ONLINE COURSES WILL BE ACCURATE, COMPLETE OR CURRENT, MEET CUSTOMER’S NEEDS OR ACHIEVE CUSTOMER’S DESIRED RESULTS OR THAT ANY STUDENT WILL SUCCESSFULLY COMPLETE AN ONLINE COURSE. UDACITY IS NOT RESPONSIBLE FOR ANY DECISIONS CUSTOMER MAKES BASED ON PERFORMANCE DATA.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1. Udacity Materials. Customer agrees that Udacity or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to Online Courses, including training videos, Course Materials and the Udacity Platform, Performance Data, and any and all related and underlying technology, content and documentation; and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Udacity Materials”). Except for the limited subscription rights expressly set forth in the Agreement, and not withstanding any use of the words “purchase”, “sale” or like terms, no other rights in any Udacity Materials are granted to Customer. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Online Course or service to Udacity (“Feedback”). Udacity may freely use or exploit Feedback in connection with any of its products or services.
8.2. Customer Access to Udacity Platform. To the extent Customer receives administrative access to the Udacity Platform, Customer may use the Udacity Platform only in accordance with the Agreement (including any Order Form) for its internal business purposes. Customer shall keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will not (and will not allow anyone else to): (a) rent, lease, copy, disclose, provide access to or sublicense the Udacity Platform; (b) use the Udacity Platform for the benefit of or to provide any service to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Udacity Platform, except to the extent expressly permitted by applicable law (and then only upon advance notice to Udacity); (d) remove any product-identification or proprietary notice or legend from the Udacity Platform; or (e) publicly disseminate information regarding the performance of the Udacity Platform.
9. LIMITATION OF REMEDIES AND DAMAGES.
9.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap. UDACITY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO UDACITY DURING THE PRIOR SIX (6) MONTHS UNDER THE AGREEMENT.
9.3. Excluded Claims. “Excluded Claims” means any claim arising from a party’s breach of its obligations in Section 11 (Confidential Information).
9.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose.
10. INDEMNIFICATION. Udacity shall defend Customer from and against any claim by a third party alleging that an Online Course when used as authorized under the Agreement infringes a copyright or trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Udacity (including reasonable attorneys’ fees) resulting from such claim, provided that Udacity shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Udacity to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of an Online Course is (or in Udacity’s opinion is likely to be) enjoined, if required by settlement or if Udacity determines such actions are reasonably necessary to avoid material liability, Udacity may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Online Course; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Online Course that was paid by Customer but not rendered by Udacity. The foregoing indemnification obligation of Udacity shall not apply: (1) if such Online Course is modified by any party other than Udacity, but solely to the extent the alleged infringement is caused by such modification; (2) if such Online Course is combined with products or processes not provided by Udacity, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Online Course; (4) to any action arising as a result of Third-Party Tools or any third-party deliverables or components contained within such Online Course; or (5) if Customer settles or makes any admissions with respect to a claim without Udacity’s prior written consent. THIS SECTION 10 SETS FORTH UDACITY’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
11. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Udacity Materials and the terms and conditions of the Agreement shall be deemed Confidential Information of Udacity without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under the Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Udacity, the subcontractors referenced in Section 13.8), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 11. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
12. CO-MARKETING. At the request of Udacity, Customer agrees to the issuance of a joint press release ("Press Release”) on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to use of Customer’s name and logo on Udacity’s web site and in Udacity promotional materials. Customer agrees that Udacity may disclose Customer as a customer of Udacity.
13. GENERAL TERMS.
13.1. Assignment. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign the Agreement without the advance written consent of the other party, except that either party may assign the Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 13.1 will be null and void.
13.2. Severability. If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that the Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue. The Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce the Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.5. Notice. Any notice or communication required or permitted under the Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
13.6. Amendments; Waivers. No supplement, modification, or amendment of the Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to the Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under the Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of the Agreement, and any such document relating to the Agreement shall be for administrative purposes only and shall have no legal effect.
13.7. Entire Agreement. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of the Agreement. Customer acknowledges that the Online Course are online, subscription-based products, and that in order to provide improved customer experience Udacity may make changes to the Online Course.
13.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of the Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
13.9. Subcontractors. Udacity may use the services of third-party instructors, mentors, reviewers and other subcontractors and permit them to exercise the rights granted to Udacity in order to provide the Online Courses and the Udacity Platform under the Agreement, provided that Udacity remains responsible for (i) compliance of any such subcontractor with the terms of the Agreement and (ii) for the overall performance of Udacity as required under the Agreement.
13.10. Subpoenas. Nothing in the Agreement prevents Udacity from disclosing Registration Data to the extent required by law, subpoenas, or court orders, but Udacity will use commercially reasonable efforts to notify Customer where permitted to do so.
13.11. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.12. Export Control. In its use of the Udacity Platform, Customer agrees to comply with all export and import laws and regulations of the U.S. and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit its users to) access or use the Udacity Platform in violation of any U.S. export embargo or restriction, and (iii) Customer shall not submit to the Udacity Platform any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.13. Government End-Users. Elements of the Udacity Platform are commercial computer software. If the user or licensee of the Udacity Platform is an agency or entity of the U.S. Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Udacity Platform, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Online Course were developed fully at private expense. All other use is prohibited.