Last Updated April 18, 2023
When you use LearnYour Benefits® these are the Terms of Service.
YOUR USE OF THE PROPRIETARY LEARNYOUR BENEFITS® SERVICE OFFERED AT LEARNYOURBENEFITS.COM (THE “SERVICE”), IS SUBJECT TO THESE TERMS OF SERVICE. IN ORDER TO USE THE SERVICE, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH LEARNYOUR WORKLIFE INC., ITS SUBSIDIARIES AS APPLICABLE (COLLECTIVELY, “LEARNYOUR BENEFITS”, “WE”, “US”, AND “OUR”). IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
The LearnYour Benefits® General Privacy Notice and the California Privacy Notice are incorporated herein by reference. This Agreement governs your use of the Service however accessed, including via an internet browser, smartphone, tablet, or other internet connected device.
By signing up for the Service on behalf of a client of LearnYour Benefits, you confirm that (a) you are duly authorized to represent the legal entity under which the client operates and any affiliates of the client who will be using the Service under the client, (b) you accept the terms of this Agreement on behalf of such legal entity and its affiliates, and (c) any references to “you” in this Agreement refer to such legal entity, its affiliates and all of the employees, consultants and agents of those respective parties. You are responsible for all activity on the Service that occurs under your account.
1.1 The LearnYour Benefits® Service may include additional services that you subscribe to receive directly from or through LearnYour Benefits (“Additional Services”). Some of these Additional Services have specific additional terms that apply to your use of those Additional Services (the “Additional Terms”), and those Additional Terms become part of this Agreement. In the event an Additional Term directly conflicts with any term in this Agreement, the Additional Term will apply to your use of the Additional Services instead of the term contained in this Agreement. For the avoidance of doubt, any reference to the Service in this Agreement will include the Additional Services.
Term and Termination
2.1 Term. This Agreement will remain in effect (a) for as long as you have an active subscription for the Service or (b) if you elect to use the Service for a free trial period, and do not purchase a subscription before the end of such period, until the end of the free trial period (the “Term”).
2.2 Start Date and Renewal. Subscriptions purchased by you commence on the start date specified when you complete the initial payment process and continue until terminated. If you add an additional subscription for a new LearnYour Benefits® service or module at a later date, the new service will commence on the start date specified at the time you add the new service and continue until terminated. Subscriptions automatically renew, as described in Section 5.1. If you would like a separate instance of the Service for an affiliate, that affiliate must purchase its own subscription to the Service and separately accept this Agreement.
2.3 Cancellation. You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time by requesting cancellation via our Manage Your Account form in our main menu or by contacting your client success team. Note, you may cancel at any time, but we don’t refund annual payments or amounts paid for the then-current month. LearnYour Benefits will refund to you any prepaid fees that would have covered any future months of your month-to-month subscription after the effective date of termination for all such subscriptions. You will continue to have access to our Service until your respective subscription term is concluded.
2.4 Suspension, Termination, and Downgrade of Service. LearnYour Benefits may suspend your access to the Service and terminate this Agreement and your use of the Service at any time in the event you materially breach this Agreement (including failure to pay, which may occur if your credit card cannot be charged) and you do not cure such breach within 30 days of LearnYour Benefits providing you with written notice of such breach (including notice by email), or earlier if a specific subscription or Additional Terms provides otherwise. Notwithstanding the foregoing, LearnYour Benefits may immediately suspend or terminate your access to the Service without liability if you are in violation of Sections 4.1, 4.6, or 13 of this Agreement, as determined by LearnYour Benefits in its sole discretion. LearnYour Benefits may also downgrade, suspend or terminate your access to the Service without liability, after providing you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 3.1 below, or (b) you do not log in to or otherwise use the Service for a period of 180 days or more if you have a paid account and for a period of 60 days or more if you have a free account. For instances other than non-payment or violation of Sections 4.1 or 13, in the event you cancel one or more of your subscriptions or this Agreement is terminated by LearnYour Benefits or you, LearnYour Benefits will refund to you any prepaid fees that would have covered any future months of your month-to-month, not annual, subscription after the effective date of termination for all such subscriptions, except that no refunds will be granted for the then-current month. See Section 5.2 for further details. Notice via email from LearnYour Benefits will be sent to you at the email address you have provided to us. LearnYour Benefits reserves the right to manage its client profile, the risks it will assume, the industries it will serve, and the locations where it will do business, including choosing to not provide services to certain groups, parties, industries, companies, or in certain countries, in its sole discretion.
2.5 Data Downloads and Deletion. In the event your subscription is terminated, other than in instances where it is terminated by LearnYour Benefits for your nonpayment or violation of Sections 4.1 or 13, you will continue to have the ability to download the information provided, inputted, or uploaded to your databases in the LearnYour Benefits® Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination of your subscription. After such 30-day period or if your subscription is terminated due to your nonpayment or violation of Sections 4.1 or 13, LearnYour Benefits shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, or required pursuant to Additional Terms, delete all of your Data contained in the LearnYour Benefits® Service.
2.6 Beta Service. You may be provided an opportunity to participate in beta or early access programs that are integrated into or are separate from the Service (“Beta Service”). By opting-in to a Beta Service, LearnYour Benefits grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license right to access and use the Beta Service. You agree that (a) Beta Services are made available to you on an “as is” and “as available” basis and may contain errors, omissions, bugs, and similar inconsistencies and (b) LearnYour Benefits has no obligation to correct any such errors. LearnYour Benefits reserves the right to modify or terminate your use of any Beta Service at any time in our sole discretion. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF A BETA SERVICE. Additionally, by opting-in to use a Beta Service, you agree to provide feedback regarding your experience with the Beta Service, upon our reasonable request. If, at any time and for any reason, you choose to opt-out of our communications regarding a Beta Service, you acknowledge and agree that we may terminate your use of the Beta Service.
Modification of Service or this Agreement
3.1 Levels of Service. The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. LearnYour Benefits reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service on a temporary or permanent basis, without liability to you or any third party.
3.2 Modification of Agreement. LearnYour Benefits may modify or update this Agreement at any time for reasons such as, but not limited to, (a) accounting for changes in laws that are applicable to our Service (b) clarifying any wording or terms (c) accounting for new products or services (d) preventing or addressing any abuse of Services offered etc. In the event LearnYour Benefits determines it is necessary to make a material modification to this Agreement, you will be provided with 30 days’ notice of such change and asked to affirmatively agree to such modified version of the Agreement. Failure to accept the material modifications may result in termination or suspension of your access to the Service as described in Section 2.4. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes. You may review the most current version of this Agreement at: https://www.LearnYourBenefits.com/terms-of-service/.
3.3 Exclusive Remedy. If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the Service.
Usage Rights; Restrictions; Support
4.1 Usage Rights. During the Term, LearnYour Benefits grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing via a web browser, other device owned or controlled by you, or other device owned or controlled by your employees. Nothing in this Agreement obligates LearnYour Benefits to deliver or make available to you any copies of computer programs or any of the software used to provide the Service (the “Software”), whether in object code or source code form. You agree to use the Service, including the Beta Service, only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to use the Service, including the Beta Service:
4.2 Support. LearnYour Benefits shall: (a) provide you with basic support in connection with your use of the Service at no additional charge, or with upgraded support if purchased separately or included with available packages, (b) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime , (ii) any unavailability caused by circumstances beyond LearnYour Benefits’ or its subcontractors reasonable control, including, but not limited to, acts of God, acts of government, floods, fires, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), internet service provider failures or delays, or denial of service attacks, or (iii) as necessary to update the Service to ensure its security and integrity, and (c) provide the Service only in accordance with Applicable Law. LearnYour Benefits’ hours for basic support are 8:00 a.m. to 5:00 p.m., Central Time, on weekdays, in the English language, from November 15 to August 31, or 7:00 a.m. to 7:00 p.m., Central Time, all week long, in the English language, from September 1 to November 14. Also, while LearnYour Benefits would like to offer the Service in a manner that accommodates all customers in their native language, this is not practical considering the constant updating we do with our Service, the vast number of languages spoken and read in the world, and the localizations that would be required. LearnYour Benefits therefore provides much of its Service in English, with limited adaptations to certain major languages, which adaptations are made in its sole discretion.
4.3 Privacy and Security Safeguards. LearnYour Benefits shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Service, and the security of your Data. LearnYour Benefits shall not (a) disclose your Data for any purpose other than to provide the Service except as compelled by Applicable Law or as you expressly authorize in writing or as otherwise provided in our General Privacy Notice or California Privacy Notice, or (b) access your Data except to provide the Service and prevent or address service or technical problems, at your express request in connection with customer support matters, or as provided in our General Privacy Notice or California Privacy Notice. In the event LearnYour Benefits is compelled by Applicable Law to disclose your Data, we will provide you with reasonable notice thereof, (in advance, if possible) if permitted by Applicable Law.
4.4 Your Responsibility. You are solely responsible for your Data, and all uses of your Data that occur through your account or any actions taken by your employees, admins, consultants, agents etc. in your account. Access credentials are for use only by you and by your authorized users, in each case in connection with your use of the Service, and you may not sell, transfer, share, or sublicense access credentials to any other person, or permit any other person to do so. You shall maintain the confidentiality of your access credentials and may not transfer them to or allow them to be used by any third party, other than by your authorized users in connection with the use of the Services. If LearnYour Benefits believes access credentials have been compromised or misused, LearnYour Benefits may change any or all access credentials or suspend your account.
4.5 You acknowledge that you retain administrative control as to who is granted access to your account with the Service. Each account is controlled by an account owner tied to a specific email address and may also have one or more admins and/or billing admins to help manage the account. LearnYour Benefits is entitled to rely on communications from the account owner and admins when servicing your account. If a person within your organization requests a change to the account owner, we will attempt to contact the account owner for consent, but to the extent that the account owner does not respond to our communications or is otherwise unavailable, we will transfer the account owner based on our own internal verification methods and at our sole discretion.
4.6 IF YOU CHOOSE TO USE AND/OR PAY FOR A TRIAL OR TEST ACCOUNT (A LIMITED TIME AND USAGE LEARNYOUR BENEFITS ACCOUNT USED FOR TESTING THE SERVICE), YOU AGREE AND ACKNOWLEDGE THAT LEARNYOUR BENEFITS MAKES NO WARRANTIES OR GUARANTEES REGARDING THE TRIAL OR TEST ACCOUNT.
4.7 API Integration. If you integrate with LearnYour Benefits using an API, you must use efficient programming, which will not cause an excessive number of requests to be made in too short a period of time, as-determined solely by LearnYour Benefits. If this occurs, LearnYour Benefits reserves the right to throttle your API connections or suspend or terminate your LearnYour Benefits account.
Payment Terms; Automatic Renewal
5.1 YOUR SUBSCRIPTION TO THE SERVICE RENEWS AUTOMATICALLY ON A MONTH-TO-MONTH BASIS OR ANNUAL BASIS. IF YOU ARE PAYING BY CREDIT CARD, YOUR CREDIT CARD WILL BE CHARGED ONCE A MONTH FOR MONTHLY SUBSCRIPTIONS OR ONCE A YEAR FOR ANNUAL SUBSCRIPTIONS. LearnYour Benefits will email you a receipt when your card has been charged. If your card cannot be charged, LearnYour Benefits will notify you and you will need to update your payment information. In the event you do not update your payment information within 14 days of LearnYour Benefits’ notice, your access to the Service may be suspended and you will need to update your card information in order to resume use of the Service. There will be no refunds or credits for partial months of service.
5.2 Pricing Adjustments. We may offer you certain discounts if you prepay your month-to-month subscription [Note, this is not the same as an annual payment plan]. If you cancel your subscription, or your subscription is suspended for nonpayment, before your prepayment has been depleted, we will refund any unearned prepayment fees but you will no longer qualify for a prepayment discount and you will be charged the difference between the monthly and prepayment discount pricing for the number of months your subscription was active during a prepayment period. If you cancel only a portion of your subscription, you may still qualify for a prepayment discount and the prepaid amounts attributed to that portion will be used against other services to which you have subscribed. Additionally, we may off you certain discounts that will utilize our discount or partner code functionality. Pricing adjustments for these are subject to the terms listed near the discount or partner code. In the event a conflict in terms between the discount or partner code and these Terms of Service, these Terms of Service will be the terms used.
5.3 Fees and Taxes. All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which LearnYour Benefits may be required to collect from you and remit to appropriate taxing authorities, you are solely responsible for payment of all such taxes or duties.
5.4 Subscription Charge Adjustments. LearnYour Benefits may at any time, upon notice of at least 90 days, or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. If you have prepaid your month-to-month subscription service, price changes and institution of new charges implemented after your prepayment will go into effect for your next monthly subscription term after the 90 days’ notice and the updated fees will be subtracted from your prepayment. If you do not agree to any such price changes, then your sole remedy is to cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies. As stated in 2.3, you are responsible for initiating the cancellation of your subscription to the Service.
5.5 Employee Quantity Changes. LearnYour Benefits regularly charges pricing tied closely to the quantity of employees in your organization that will have access to the Service. At least once per year and no more than four times per year, LearnYour Benefits’ client service teams will request an updated employee quantity. Pricing reflecting the new employee quantity will go into effect as follows:
Intellectual Property Rights
6.1 LearnYour Benefits Rights. As between the parties, LearnYour Benefits owns and shall retain all right, title and interest in and to (a) the Software, Service, and Beta Service including all intellectual property rights therein, and (b) all operational and performance data related to your use of the Service and Beta Service, including, without limitation, which features are used, time spent using the Service and Beta Service, and similar data and metadata created in connection with the Service and Beta Service, together with analysis of such operational and performance data and derived findings, correlations, discoveries, and other insights or learnings derived by LearnYour Benefits from such analysis (collectively, “Performance Data”). LearnYour Benefits may collect, use, and disclose all such Performance Data for its business purposes (such as software use optimization, product marketing, industry benchmarking, best practices guidance, recommendations, or similar reports for distribution to and consumption by you and other LearnYour Benefits customers and prospects, etc.), including by combining and analyzing Performance Data with other data. LearnYour Benefits shall not disclose Performance Data to any non-affiliated third party unless such Performance Data has been anonymized or de-identified, or is disclosed in aggregated form, in all cases such that Performance Data does not reveal your identity, any of your confidential information, or any personally identifiable information that belongs to you or your employees.
6.2 Your Rights. You retain all right, title and ownership interest in and to your Data. LearnYour Benefits has no right, title or interest in any personally identifiable information contained in or related to your Data, nor do we ever try to collect it or draw correlations or relationships between personally identifiable data. If you are a consultant to the client of LearnYour Benefits and provide services to such client that include or involve accessing and/or using the Data, you acknowledge that you do not own or have any rights or interests in the Data except as authorized by the client of LearnYour Benefits and that such client is the owner of the Data in the LearnYour Benefits Service. You further acknowledge and agree that LearnYour Benefits may follow the instructions of the client regarding the Data including removing your access to the Data and/or reassigning your roles and permissions related to the Data.
6.3 Feedback. To the extent you provide any suggestions, enhancement requests, recommendations, comments, or other feedback (“Feedback”) about the Service, including the Beta Service, to LearnYour Benefits, the Feedback will not be considered confidential or proprietary, and LearnYour Benefits may use and include any such Feedback to improve the Service and/or the Beta Service, or for any other purpose. Accordingly, if you provide Feedback, you agree that LearnYour Benefits shall own all such Feedback, and LearnYour Benefits and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign all rights in such Feedback to LearnYour Benefits.
6.4 Software Deliverables. From time to time during the Term, LearnYour Benefits may develop, author or prepare custom documents, software or user experience designs, computer programs, APIs, single-sign-on programming, computer documentation and other tangible materials (“Deliverables”) for you pursuant to agreement between you and LearnYour Benefits. LearnYour Benefits shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use only during the Term. LearnYour Benefits may reuse any Deliverables, provided that such use does not reveal your identity, your confidential information or any personally identifiable information that belongs to you or your employees.
6.5 Other Deliverables. From time to time during the Term, LearnYour Benefits may develop, author or produce semi-custom videos, custom videos, custom communications programs, or other custom tangible deliverables (“Other Deliverables”) for you pursuant to agreement between you and LearnYour Benefits. Ownership of Other Deliverables is not covered by these Terms of Service and will be covered in a separately identified proposal, invoice, or explicit approval. LearnYour Benefits may reuse any part of an Other Deliverable, provided that such use does not reveal your identity, your confidential information or any personally identifiable information that belongs to you or your employees.
7.1 Unless otherwise agreed to by you and LearnYour Benefits, during the Term, LearnYour Benefits may disclose your company name as a customer of LearnYour Benefits and/or subscriber to the Service, and you hereby grant LearnYour Benefits the right to display your company name and logo in LearnYour Benefits’s marketing materials and on LearnYour Benefits’s public website, in each case in accordance with any branding guidelines you may provide to LearnYour Benefits.
8.1 Certain features of the website may enable administrative users to submit, upload, post, share, or display (hereinafter, “post”) significant text, messages, comments, or content, as well as to interact with others through user comment areas, LearnYour Benefits’s blog, LearnYour Benefits’ webinars, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as “User Content”). User Content includes any comments or reviews you provide to LearnYour Benefits, whether through customer support or otherwise, about the Service and/or Beta Service, but excludes all Data.
8.2 You hereby grant to LearnYour Benefits an irrevocable, perpetual, non-exclusive, transferable, sublicensable, assignable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on our website or about the Service, including the Beta Service, for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to LearnYour Benefits that you own or control all rights in and to such User Content and have the right to grant the rights above to LearnYour Benefits.
Warranties and Limitation of Liability
9.1 Limited Warranty. LearnYour Benefits represents, warrants, and covenants as follows: (a) the Service will perform substantially in accordance with the specifications generally provided by LearnYour Benefits in connection with the Service (“Documentation”); (b) the provision of the Service will comply with all privacy and data protection laws applicable to our business; (c) we will not sell personal information provided by you, and we will retain, disclose, or use personal information provided by you only for purposes of providing the Service, except as otherwise permitted by applicable law; and (d) any professional services performed for you by LearnYour Benefits will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
9.2 DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, LEARNYOUR BENEFITS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, BETA SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. LEARNYOUR BENEFITS DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
9.3 LIMITATION OF LIABILITY. EXCEPT FOR (I) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (III) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY OR PAYABLE TO LEARNYOUR BENEFITS FROM YOU PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. THE FOREGOING LIMITATIONS DO NOT APPLY TO YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10.1 External Breach. In the event of an accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to, data (a “Security Breach”), that impacts the data you maintain through the LearnYour Benefits® Service, and which is perpetrated by anyone other than your employees, contractors or agents, upon discovery of such Security Breach, LearnYour Benefits will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) as required by Applicable Law, notify you of the Security Breach, its nature and scope, the remedial actions LearnYour Benefits will undertake, and the timeline within which LearnYour Benefits expects to remedy the Security Breach. You will be responsible for fulfilling your obligations under Applicable Law.
10.2 Internal Breach. In the event of a Security Breach, as defined by Applicable Law, which is perpetrated by your affiliate, employee, contractor or agent, or due to your failure to maintain your systems, network or Data in a secure manner, you shall have sole responsibility for initiating remedial actions and you shall notify LearnYour Benefits immediately of the Security Breach and steps you will take to remedy such breach. In our sole discretion, we may take any action, including suspension of your access to the Service, to prevent harm to you, us, the Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
10.3 Breach Notifications. In the event that either party is required to notify individuals impacted by the Security Breach or regulatory agencies, the notifying party will provide the other party with an opportunity to review and approve the notification for accuracy prior to it being delivered, such approval not to be unreasonably withheld.
11.1 You agree to indemnify, defend and hold harmless LearnYour Benefits, and its subsidiaries, affiliates, assigns, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with (a) your access or use of the Software, Beta Service and/or Service in violation of this Agreement, (b) any employment decision or action you take due to information available through or your use of the Service or relating to the inaccuracy or incompleteness of any information you make available to your employees, independent contractors or candidates by or through the Services, including, without limitation, the inaccuracy or incompleteness of any information relating to the actual or proposed compensation of, or equity ownership by, such employees, independent contractors or candidates, (c) User Content or Data provided by you, your end users, or other third parties, (d) your violation or alleged violation of any third party right, including without limitation any right of privacy or any right provided by labor or employment law, and (e) your violation or alleged violation of this Agreement.
11.2 LearnYour Benefits agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim made or brought against you alleging that your use of the Software, Beta Service, and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall LearnYour Benefits have any obligations or liability arising from: (a) use of the Software, Beta Service, and/or Service in a modified form or in combination with materials or software not furnished by LearnYour Benefits, and (b) any User Content, information or Data provided by you, your end users, or other third parties.
11.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnifying party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 11, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
Governing Law; Jurisdiction
12.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without reference to conflict of laws principles.
12.2 Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of Delaware and/or the courts of the United States of America for the District of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Compliance with Laws; Disclaimers
13.1 Each Party shall comply with all Applicable Laws in connection with its own activities under this Agreement. The Service can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to ensure that your employees’ use and your use of the Service, including the Beta Service, complies with and is in accordance with Applicable Law. In no event shall LearnYour Benefits be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service or a Beta Service.
13.2 LearnYour Benefits does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Laws in the jurisdictions in which you use the Service, and any statements made by LearnYour Benefits to you shall not constitute legal advice.
13.3 You acknowledge that LearnYour Benefits exercises no control over your specific human resource practices implemented using the Service or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Service. You further agree and acknowledge that LearnYour Benefits does not have a direct relationship with your employees and that you are responsible for all contact, questions, Data updates and collection, with and from your employees. In addition, you are responsible for the privacy (including adopting and posting your own privacy policies governing your treatment of your employees’ Data), collection, use, retention and processing of your Data, and providing any and all notices and information to your employees regarding the foregoing, in compliance with all Applicable Laws. LearnYour Benefits hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service, including a Beta Service, by you and/or your employees, contractors or agents.
13.4 You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the Service, Beta Service, or Software, or any technical information about the Service, Beta Service, or Software, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained.
13.5 You represent and warrant that (a) you are not located in 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; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
13.6 You acknowledge and agree that the Service is not intended for the use, storage, collection or maintenance of Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”) and that LearnYour Benefits is not a Business Associate as defined under HIPAA. You agree to not upload or store PHI in the Service.
14.1 If you use the iOS version of the Service, you acknowledge the statements set forth in this Section. This Agreement is between you and LearnYour Benefits only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the functionality or content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty and if you purchased a subscription to the Service through Apple, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by Applicable Law, Apple has no other warranty obligation whatsoever with respect to the Service. As between Apple and LearnYour Benefits, LearnYour Benefits is responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Service to conform to any warranty, subject to the terms of this Agreement. Apple is not responsible for addressing any claims brought by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.
Additional Services; Third Party Services
California Privacy Rights Act
17.1 As applicable, each Party shall comply with the California Consumer Privacy Act and the California Privacy Rights Act (together, “CPRA”). As defined under the CPRA and for purposes of this Agreement, we are a Service Provider, and you are a Business. You appoint LearnYour WorkLife and LearnYour Beneffits as your Service Provider to process and store personal information we may inadvertently collect, which includes the Business Purposes defined under Section 1798.140 of the CPRA. All capitalized terms used herein and not otherwise defined in this Agreement shall have the same meaning as used under the CPRA. The terms in this CPRA section shall supersede any inconsistent terms in the Agreement.
17.2 Each Party is responsible for compliance with their obligations under the CPRA. You will ensure that you have provided notice and have obtained (or shall obtain) all consents and rights necessary under the CPRA for us to process and store Personal Information for the Service. We will notify you if we determine that we are unable to comply with the CPRA. You may take reasonable and appropriate steps, at your cost, to ensure that we are complying with your CPRA obligations with respect to the Personal Information processed under this Agreement. We grant you the right to stop and remediate unauthorized use of your Personal Information. We will make information available to demonstrate our compliance with the CPRA.
17.3 We will only process and store Personal Information as a Service Provider according to the documented instructions in this Agreement and your configuration of the Service or as otherwise necessary to provide the Service. We will not process or store the Personal Information for any other purpose except to the extent permitted by the CPRA. We will not Sell or Share the Personal Information you provide under the Agreement. We agree not to retain, use or disclose the Personal Information collected pursuant to the Agreement: (a) for any purposes other than the Business Purposes specified in the Agreement or as otherwise permitted by the CPRA; (b) for any commercial purpose other than the Business Purposes specified in the Agreement, unless expressly permitted by the CPRA; and (c) outside our direct business relationship, unless expressly permitted by the CPRA. We also agree to not combine or update Personal Information that we have collected pursuant to the Agreement with Personal Information that we received from another source or collected from our own interactions with the Consumer, unless expressly permitted under the CPRA.
17.4 We will direct Consumers to submit privacy rights requests under the CPRA to you or promptly forward requests that we receive, to you for review and determination of the response. If necessary, we will use reasonable efforts to assist you with carrying out the response or enable you to comply with the privacy rights request under the CPRA. If you receive any correspondence, inquiry, or complaint from a Consumer, the California Attorney General, the California Privacy Protection Agency or other regulator in connection with processing of the Personal Information under this Agreement, you will provide us with a copy of the communication. We will provide reasonable assistance as necessary for your response.
17.5 You authorize us to engage any other person to assist us in processing Personal Information for the Business Purposes under this Agreement. Through this list, we inform you of our engagement of these subcontractors. We will ensure that our engagement of these subcontractors will be pursuant to a written contract binding these subcontractors with materially compliant terms under the CPRA.
18.1 Entire Agreement. This Agreement encompasses the entire agreement between you and LearnYour Benefits with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement.
18.2 No Waiver. The failure of LearnYour Benefits to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
18.3 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
18.4 Survival. The provisions of this Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
18.5 Assignment. You may not assign or otherwise transfer (via a change of control or otherwise) any of your rights or obligations under this Agreement without LearnYour Benefits’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
18.6 No Legal Advice; Reliance. No part of this Agreement is intended or shall be construed as legal advice. LearnYour Benefits shall not be liable for any errors or omissions in the content of this Agreement or for any actions taken in reliance thereon.
18.7 No Third-Party Beneficiaries. Subject to Section 14.1, nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties hereto, any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
18.8 FAQ Disclaimer. No part or content contained in the FAQs or FAQ videos is intended to be legal advice, contractual, a “meeting of the minds” or binding in nature. FAQs and FAQ videos are intended to be informational and do not create a contract or other binding agreement and should not be considered a substitute for reading and understanding this Agreement. The FAQs and FAQ videos are not guaranteed to be accurate, complete, reliable, current or error-free. In the event of a conflict between this Agreement and the FAQs and/or FAQ videos, the terms of this Agreement will control.
19.1 If you have any questions about the Service or this Agreement, you may call us at 800-718-1803, email us at support@LearnYourBenefits.com, or write to us at:
d/b/a LearnYour Benefits
ATTN: Legal & Accounting
8220 Commonwealth Drive
Eden Prairie, MN 55344
LearnYour Benefits® is a registered trademark of LearnYour WorkLife, Inc.© 2016-2023. All rights reserved.