Megawide University

MEGAWIDE UNIVERSITY END USER LICENSE AGREEMENT

 

IMPORTANT! PEASE READ CAREFULLY. This is an undertaking. By clicking “I AGREE” on the preceding page, you accept and agree to be legally bound by all the terms and conditions of this End User License Agreement (the “Agreement”). This Agreement” is made and executed by and between you (the “End User”) and Megawide Construction Corporation (“Megawide”) with principal office address at 10th Floor, Rockwell Santolan Town Plaza, Boni Serrano Ave., San Juan City 1500 Philippines, on the date that you click “I AGREE” (the “Effectivity Date”). Before you access or use any of the electronic of the Megawide University  Software”), please indicate that you accept all the terms and conditions of this Agreement. If you do not accept the terms and conditions of this Agreement, please click “CANCEL”, in which case you cannot access E-Learning.

 

1.      The E-Learning Software

 

1.1.  Scope and Coverage. The E-learning Software is comprised of (a) the instructional modules, activities, quizzes, and other related courseware that the End User selects during his/her registration (the “Content”); and (b) the various learning management services provided to the End User (the “LMS”), including (i)_the End User account set-up and management, and (ii) the storage and retrieval of the End User’s learning records, test scores and other information on the End User’s progress.

 

1.2.  Minimum Technical Requirements. The E-Learning Software license shall be made available to you via a standard browser-based user interface provided as part of the LMS. The E-Learning Software shall be delivered via a hypertext transfer protocol (http) from the megawideuniversity@megawide.com.ph domain, which is the designated URL of the site. The minimum technical requirements herein set forth shall be complied with for the optimal operation of the E-Learning Software. Should the End User fail to comply with the minimum technical requirements, Megawide shall not be responsible for the poor or inefficient performance of the E-Learning Software.

 

1.3.  Badges and Certification. The E-Learning Software educates the End Users on Megawide standards and learning and development modules, which include technical and leadership training. For each completed module, the End User shall be entitled to earn a badge as a symbol of completion of all the requirements provided therein. The said Certificate of Completion may be requested from Megawide University by completing all course requirements and downloading it directly from the application, or by emailing the designated system administrator. The End User understands and agrees that the award of any such badge is not equivalent to a representation by Megawide of the End User’s competency with regard to any particular subject matter, but merely an indication of the End User’s completion of a module and its corresponding exam.

 

2.       License Grant and Restrictions

 

2.1.  License. Subject to all the terms and conditions of this Agreement, Megawide hereby grants the End User a limite, non-exclusive, and non-transferable license to use and access (i) the Content that the End User selected during the registration including its quizzes and other courseware, and (ii) the LMS, only to the extent necessary in using and accessing the Content, and solely for the purpose of educating and training the End User, subject to the following periods: (a) For Onboarding Modules – within one (1) year from the Effectivity Date; (b) For Leadership Trainings – within six (6) months from the Effectivity Date; (c) For Technical Trainings – within six (6) months from the Effectivity Date; and (d) For Optional Trainings - six (6) months from the Effectivity Date. Megawide reserves all rights not expressly granted to you in this Agreement.

 

2.2.  Terms of Use. The End User acknowledges and agrees that it shall fully comply with any and all the terms and conditions of use of the E-learning Software (the “Terms of Use”) as well as to all the current applicable laws and regulations. In the event that the End User deviates or violates any provision of the Terms of Use or current laws or regulations, Megawide reserves the right to suspend or terminate the End User’s license, subject to sole and exclusive discretion of Megawide.

 

2.3.  License Restrictions. The End User acknowledges that Megawide and its licensors own the title, copyright, intellectual property rights, and other interests in the E-Learning Software.  The End User shall not, and shall not enable or permit others to, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the E-learning Software, or alter, or modify, or disable any features of, the E-learning Software, or create derivative works based on the E-learning Software. The End User may not rent, lease, lend, transfer, sublicense or provide mass trainings, third party trainings, or commercial hosting services with the E-learning Software. The End User may not publish other materials to the E-Learning catalog without Megawide’s prior written consent,  except materials that are  allowed under Terms of Use. The End User shall not copy, duplicate or permit others to copy or duplicate the E-Learning Software or any module or other portion thereof, except when the End User takes notes of the contents of the module for review purposes. Such permitted copy must include all trademarks, copyright notices, restricted rights legends, proprietary markings, and the like exactly as they appear on the original and the End User is not permitted to further duplicate or distribute that copy to any third party.

 

2.4.  Authentication. Upon registration, the End User shall create a unique username and password (the “Authentication”) to access the E-Learning Software. The End User shall be solely responsible in ensuring the confidentiality of his/her Authentication, and the End User shall be made liable for any consequences, losses or damages that Megawide or its licensors may suffer as a result of the negligence or the willful and intentional disclosure of the End User of such Authentication.

 

3.       Payments as of the Effectivity Date. The End User shall pay the appropriate license fees set forth in Megawide’s current price list (the “License Fees”) to be released annually or_[EA1] [MJN2] [AE3]  if applicable. All License Fee(s) are non-refundable, unless the Agreement provides otherwise. All License Fees are exclusive of all national, municipal or other government-imposed taxes, excises, withholding obligations and other levies which are currently imposed or which may be imposed in the future (collectively, “Taxes”).

 

4.       Confidentiality

 

4.1.  “Confidential Information” means all confidential or proprietary information belonging to Megawide, its affiliates and subsidiaries, and disclosed to the End User (including, but not limited to, any technical, business, financial and marketing information, third party confidential information, information received from the the E-Learning Software or encountered by the End User in during the trainings about Megawide’s customers, third party service providers, its equipment, apparatuses, its construction, architecture, energy, transportation management and technology standards, and the terms and conditions of this Agreement). Confidential Information does not include any information that: (a) is in or enters the public domain through no fault of the End User; (b) the End User was demonstrably in possession of it prior to first receiving it from the Megawide; (c) the End User can demonstrate that it was developed by the End User independently and without use of or reference to the Megawide’s Confidential Information; or (d) the End User receives the Confidential Information from a third party without restriction on disclosure and without breach of a nondisclosure obligation. 

 

4.2.  The End User agrees to: (a) hold in strict confidence all Confidential Information of Megawide, its affiliates and subsidiaries; (b) use the Confidential Information solely for educational and training purposes as provided under this Agreement; and (c) not to transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity. The End User shall not use (except as expressly provided in this Agreement) or disclose Confidential Information of the Megawide without the prior written consent of Megawide. The End User shall use the same degree of care to protect Megawide’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstance with less than reasonable care. 

 

4.3.  The End User may disclose the Confidential Information of Megawide in response to a valid court order, law, rule, regulation, or other governmental action provided that: (i) the Megawide is notified in writing prior to disclosure of the information; and (ii) the End User assists Megawide, at Megawide’s expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information. 

 

4.4.  If any Party gains access to any Personal Information of the other Party, such receiving Party (“Receiving Party”) shall comply with the terms and conditions of this Section. For purposes of this Agreement, Personal Information shall include any information about an individual maintained by a Party, including information that: (i) can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; (ii) is linked or linkable to an individual, such as medical, educational, financial, and employment information; and (iii) are protected under any other applicable national, federal, or state data privacy laws, rules or regulations (“Privacy Regulations”). To the extent that Confidential Information accessed or received by the Receiving Party or its Representatives includes Personal Information, the Receiving Party shall comply with all obligations as set forth in Privacy Regulations (collectively, “Data Privacy Obligations”). Receiving Party shall ensure that it has adequate administrative, technical, and physical safeguards to protect the privacy of Personal Information as prescribed by the Privacy Regulations. The Receiving Party shall not perform any act that the other Party is prohibited from performing in accordance with its Data Privacy Obligations. The Receiving Party shall not perform any act, or fail to take any act, that would cause the other Party to be in breach of the Data Privacy Obligations. Without limiting the foregoing, the receiving Party shall, and shall cause its Representatives to: (i) ensure the security and confidentiality of Personal Information; (ii) protect against any threats or hazards to the security or integrity of Personal Information; and (iii) prevent unauthorized access to or disclosure or use of Personal Information. The Receiving Party shall immediately notify the other Party, no later than twenty-four (24) hours from the Receiving Party’s discovery, of: (i) any unauthorized access to or disclosure or use of Personal Information by the Receiving Party or any of its Representatives. Upon the disclosing Party’s direction and sole discretion, the Receiving Party shall immediately return to the other Party any and all Personal Information which it has received or to which it has gained access to under this Agreement and shall destroy all records of such Personal Information. 

 

4.5.  The End User shall be jointly and severally responsible for any breach of the terms of this Section by it or by its Representatives and shall indemnify the Megawide and/or its licensors, customers, subsidiaries, affiliates, directors, officers, employees or any third person for any damage resulting from the disclosure or consequent unauthorized use of any Confidential Information.

 

4.6.  The obligations of the Parties contained in this Section shall survive the termination of this Agreement. Upon the termination of this Agreement, the End User undertakes to immediately return to Megawide any and all information in tangible form, including but not limited to copies, summaries, excerpts, extracts or other reproduction thereof as well as documents acquired in the performance of the Services herein contracted for that may be in its possession and provide Megawide with a duly sworn certification of such return signed.

 

4.7.  Notwithstanding anything to the contrary in the foregoing, the End User acknowledges and agrees that Megawide may use non-personally identifiable aggregated data related to End User module test scores and overall usage of E-Learning including access to and participation to modules and activities, assessments, assignments and forums.

 

5.       Updates, Maintenance and Support

 

5.1.  Updates. Megawide expressly reserves the right to modify the Content and the LMS at any time in its sole discretion, including but not limited to modifying the Content to update such Content and for other purposes and upgrading and modifying the technology, functionality, and capabilities of the LMS. Any such modified Content or LMS made available hereunder shall be deemed “Content” or “LMS” for purposes of this Agreement.

 

5.2.  Maintenance. Megawide will use commercially reasonable efforts to make the E-Learning Software continually available, except for scheduled maintenance and downtime. In an effort intended to ensure that scheduled maintenance and downtime has minimal impact on End Users, Megawide’s IT group uses commercially reasonable efforts to perform its scheduled maintenance and downtime during a maintenance window which occurs everyday from 11:00 pm to 7:00 am (GMT+8) (the “Maintenance Window”). The End User’s access to the E-Learning Software may be unavailable during scheduled maintenance and downtime. End User acknowledges and agrees that access to the Internet is also subject to unexpected outages due to failure of equipment or services of Internet service providers that are not a party to this Agreement.

 

5.3.  Megawide or its third-party provider shall use commercially reasonable efforts to provide the End User with technical support services available via telephone and email during operating hours of 8:00am – 6:00pm, Mondays-Fridays (the “Technical Support”). The End User shall receive up to sixty (60) minutes of Technical Support during the Term at no additional charge. The number of minutes of the Technical Support used by End User may be tracked and documented by Megawide or its third party provider on a quarterly basis. Technical Support used in excess of sixty (60) minutes is available at Megawide then-current standard support rates.

 

6.       Disclaimer of Warranty. THE E-LEARNING SOFTWARE, INCLUDING ALL ITS CONTENT, IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEGAWIDE AND ITS THIRD-PARTY SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEM INTEGRATION, DATA ACCURACY, AND NON-INFRINGEMENT. THE CONTENT AND OTHER MATERIALS PROVIDED AS PART OF THE E-LEARNING SOFTWARE ARE FOR GENERAL, INFORMATION PURPOSES ONLY AND ARE NOT TAILORED TO SPECIFIC FACTUAL CIRCUMSTANCES. WHILE MEGAWIDE USES REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE CONTENT AND INFORMATION AS PART OF THE E-LEARNING SOFTWARE, MEGAWIDE TRAINING MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION AVAILABLE AS PART OF THE E-LEARNING SOFTWARE. END USER IS RESPONSIBLE FOR VERIFYING THAT THE GENERAL CONTENT AND INFORMATION PROVIDED IS APPROPRIATE FOR ANY SPECIFIC FACTUAL SITUATION BEFORE RELYING ON IT. MEGAWIDE MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF E-LEARNING WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. MEGAWIDE IS NOT LIABLE FOR DAMAGES INCURRED BY END USER IF END USER FAILS TO TAKE ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT OR OTHER MATERIAL OBTAINED FROM E-LEARNING IS FREE OF VIRUSES AND OTHER POTENTIALLY HARMFUL DEVICES.

 

7.       Limitation of Liability. IN NO EVENT SHALL MEGAWIDE’S LIABILITY TO THE END USER OR TO ANY THIRD PARTY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY END USER TO MEGAWIDE FOR THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. IN NO EVENT WILL MEGAWIDE BE LIABLE TO END USER OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY EVEN IF A LIMITED REMEDY PROVIDED HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.

 

8.       Indemnification. The End User shall indemnify, defend, and hold Megawide harmless from and against any and all liability, damages, losses, or expenses (including reasonable fees of attorneys and other professionals) arising from any claim, demand, action, or proceeding initiated by any third party based upon any claim that End User has failed to use the E-Learning Software in accordance with the terms and conditions of this Agreement or has otherwise failed to comply with the terms of this Agreement.

 

9.       Term and Renewal Rights

 

9.1.  Term. The Agreement is in effect for the following periods, unless earlier terminated as provided herein:

 

9.1.1.    Onboarding Modules- one (1) year from the Effective Date;

9.1.2.    Leadership Training- six (six) months from the Effective Date;

9.1.3.    Technical Training - six (six) months from the Effective Date; and

9.1.4.    Optional Training - six (six) months from the Effective Date

 

9.2.  Megawide may terminate this Agreement upon fifteen (15) days’ prior written notice to the End User if the End User has committed a material breach of this Agreement and such breach is not capable of being cured or you fail to cure such breach within five (5) days from notice to the End User by Megawide of the breach.

 

9.3.  Effect of Termination. Upon the termination or expiration of this Agreement, (i) the End User shall immediately cease all use of the E-Learning Software; and (ii) each party shall promptly return all copies of the other party’s confidential information. The End User acknowledges and agrees that prior to the termination or expiration of this Agreement, the End User, to the extent it deems necessary in its discretion, shall be responsible for downloading any and all records and reports of the E-Learning Software activity that the End User desires to retain from the LMS. Except as expressly provided in this Agreement, in no event shall the End User be entitled to a refund of any License Fees prior to the effective date of termination. Any obligation of either party, which accrued prior to termination or expiration, including any payment due, shall survive termination of this Agreement. Termination of this Agreement shall have no effect on any other agreement between the parties. Sections 3, 4, 7, 8, 9b and 10 will survive the termination or expiration, for any reason, of this Agreement.

 

10.    General

 

10.1.      Force Majeure. Neither party shall be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder (excluding payment obligations) or for failure to give the other party prior notice thereof when such delay or failure is unforeseeable and due to the elements, acts of God, civil commotion, strikes, labor disputes, Internet service interruptions or slowdown thereof, vandalism or “hacker” attacks, delays in transportation, supply failures, acts of governmental or regulatory agencies or authorities, delays in delivery by vendors, or any other unforeseeable causes beyond that party’s reasonable control.

 

10.2.      Miscellaneous. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The End User may not assign this Agreement without the prior written consent of Megawide, and any assignment in violation of this Section shall be null and void. Notwithstanding anything to the contrary herein, the End User acknowledges and agrees that Megawide may use third-party service providers in the performance of certain of its obligations hereunder. The parties to this Agreement are independent contractors. There are no third party beneficiaries to this Agreement. Any notice under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other party. Notices shall be delivered to End User and Megawide at the respective addresses set forth above, or to such other address as is provided by one party to the other in writing. No modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.

 

YOU (END USER) ACKNOWLEDGE THAT YOU HAVE READ THE FOREGOING AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS. BY CLICKING "I AGREE" ON THE PRECEDING PAGE, YOU CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.