TRAINHUB TERMS

Last updated: March 18, 2022.

1.  Definitions

Capitalized terms used and not otherwise defined herein have the following meanings:

• “TrainHub” means the web-based products and services that Customer has subscribed for in an Order or that ApplyBoard makes available to Customer free of charge or under a free trial, including associated offline or mobile components and any ancillary products and services that may be offered by ApplyBoard to Customer.


• “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.


• “ApplyBoard” means ApplyBoard Inc. or such other Affiliate of ApplyBoard as may be named in an Order made between Customer and ApplyBoard or otherwise specified in these Terms of Service.


• “Content” means the information, data, material, graphics, photographs, videos, sound, music, tags and content made available to Customer through the TrainHub, whether the source of such content is a publicly available source, a third-party content provider or ApplyBoard. Content does not include Customer Data.


• “Customer” means in the case of an individual accepting these Terms of Service on his or her own behalf, such individual, or in the case of an individual accepting these Terms of Service on behalf of a legal entity, the legal entity for which such individual is accepting these Terms of Service, as identified in the applicable account record, billing statement, online subscription process or Order.


• “Customer Data” means electronic data submitted, posted or uploaded by or for Customer to the TrainHub. Customer Data does not include Content.


• “Fee” means the amount that Customer is obligated to pay for a subscription to the TrainHub.


• “Order” means an order made by Customer on ApplyBoard’s online purchasing portal or a written ordering document entered into between Customer and ApplyBoard which references these Terms of Service, in each case specifying the subscription(s) to TrainHub that Customer has agreed to purchase, including any addenda, schedules, exhibits and/or supplements thereto.


• “Parties” means Customer and ApplyBoard.


• “Terms of Service” means the TrainHub Terms of Service, including, without limitation, these TrainHub Terms, and the Order(s) and all other documents referred to, appended to, incorporated by reference into or linked to the foregoing.


• “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting these Terms of Service on behalf of a legal entity, an employee or contractor of Customer who is authorized by Customer to use the TrainHub, for whom Customer has purchased a subscription (or in the case of TrainHub provided by ApplyBoard without charge, for whom an TrainHub has been provisioned), and to whom Customer has supplied a user identification and password.

2.  TRAINHUB

• 2.1

  TrainHub. During the Subscription Term, ApplyBoard will provide Customer’s Users with access to the TrainHub that Customer has ordered pursuant to an Order. Unless otherwise provided in the applicable Order, TrainHub ordered by Customer in an Order are purchased as subscriptions for the Subscription Term. Provision of TrainHub is subject to the terms and conditions of these Terms of Service. The TrainHub may provide Customer with access to Content. In an effort to improve Customer’s experience with TrainHub, ApplyBoard may modify the Content or the TrainHub, including by adding, changing or removing features or functions from time to time and without notice to Customer.

• 2.2

  ApplyBoard Personnel. Except as otherwise specified herein, ApplyBoard will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with ApplyBoard’s obligations under these Terms of Service.

3.  USE OF TRAINHUB

• 3.1

  Registration and Account. In order to access TrainHub, Customer will be required to register one or more Users for an account on the TrainHub platform. Customer must ensure that the information in its registration is accurate and update such information as necessary. ApplyBoard reserves the right to suspend account access if there is reason to believe that Customer’s account information is inaccurate or outdated. Customer shall ensure that all its Users maintain the confidentiality of their accounts and passwords and do not share the accounts or passwords with any other person (including another employee of Customer). ApplyBoard is not responsible for any activity occurring from a User’s account, including any unauthorized activity.

• 3.2

  Customer Data. Customer is responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the TrainHub.

• 3.3

  Customer Responsibilities. Customer shall use TrainHub and Content only in accordance with the Terms of Service and the Order. Customer shall not provide any third party with access to the TrainHub or Content and will not disclose any Content to any third party. Customer further agrees that it shall: (i) use the TrainHub solely for internal business purposes; (ii) not permit anyone other than Users to access the TrainHub; (iii) use the TrainHub in accordance with the documentation and guidelines that ApplyBoard may provide from time to time; (iv) promptly notify ApplyBoard if Customer becomes aware of any unauthorized access or use to TrainHub or a security breach involving Customer’s account; (v) use reasonable efforts to prevent unauthorized access to or use of the TrainHub and Content; and (vi) use the TrainHub and Content only in accordance comply with all applicable laws and regulations, including all intellectual property, data and privacy laws.

• 3.4

  Restrictions on Use. Customer shall not, and shall not permit anyone else to: (i) copy, modify, translate, distribute, assign, sell, broadcast, publish or license in any form any part of the TrainHub or Content; (ii) use the TrainHub or the Content on behalf of, or to provide any product or service to, any third party; (iii) use the TrainHub or Content to develop a similar or competitive product or service; (iv) overly burden or otherwise interfere with ApplyBoard servers, systems or networks; (v) attempt to circumvent, or in any manner compromise any security features of the TrainHub; (vi) perform any security or vulnerability test, scan or review on the TrainHub; (vii) attempt to gain unauthorized access to any component of the TrainHub; (viii) attempt to modify, delete or in any manner compromise any Content or features of the TrainHub; (ix) create derivative works based on the TrainHub or the Content; (x) decompile, disassemble, reverse engineer or otherwise attempt to discover any source code of the TrainHub (xi) “mirror” or otherwise incorporate any part of the TrainHub or Content on any website; (xii) access, monitor or copy any part of the TrainHub or Content using any robot, scraper or other automated means or any manual process; (xiii) access the TrainHub for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. (xiv) remove, cover or otherwise obscure any watermarks, labels or other legal or proprietary notices included in the Content or TrainHub; or (xv) upload or communicate on the TrainHub any data, information, content or other materials that: (1) contain any computer viruses, malicious code, or any software intended to damage or alter a computer system or data; (2) Customer does not have the lawful right to upload or communicate; (3) is false or intentionally misleading; (4) is harassing, defamatory, or otherwise offensive, or that contains nudity or violence, or that promotes violence, racism, discrimination, bigotry or hatred, or that otherwise violates applicable laws; (5) infringes or otherwise misappropriates the intellectual property or other rights of any third party; or (6) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability.

• 3.5

  Suspension. If, in ApplyBoard’s reasonable judgment, Customer’s use of the TrainHub threatens the security, integrity or availability of ApplyBoard’s services (including the TrainHub) or the confidentiality of sensitive, confidential or proprietary information (including Content) or Customer breaches its responsibilities set out in the Sections titled “Customer Responsibilities” or “Restrictions on Use”, ApplyBoard may suspend Customer’s access to the TrainHub without notice to Customer, if reasonably required in the circumstances. ApplyBoard will have no liability to Customer or any third party in connection with any such suspension.

4.  FEES AND PAYMENT

• 4.1

  Fees.

  4.1.1.

  Fees for the initial term of Customer’s subscription to the TrainHub will be as specified in the Order.

  4.1.2.

  Upon renewal, ApplyBoard may increase the Fees for the TrainHub to ApplyBoard’s then-current list price. If ApplyBoard increases its Fees in accordance with the foregoing, ApplyBoard will notify Customer by email and/or in-platform notification at least thirty (30) days’ in advance of the renewal and the increased fees will apply at the start of the renewal term. If Customer does not agree to this increase, either Party may elect to terminate the subscription by notifying the other Party in accordance with the Section titled “Notice of Non-Renewal”.

  4.1.3.

  Customer shall pay all fees specified in Orders. All payment obligations are non-cancelable and fees paid are non-refundable unless explicitly stated otherwise in these Terms of Service or an Order. Fees are payable in the currency specified in the Order (including, where applicable, online purchasing portal). If an Order does not specify the currency, Fees are expressed and shall be paid in USD.

• 4.2

  Payment of Fees. Customer shall pay all Fees. Customer will provide ApplyBoard with valid and updated credit card information. If Customer provides credit card information to ApplyBoard, Customer authorizes ApplyBoard to charge such credit card for the TrainHub package listed in the Order (Order including, for certainty, the online purchasing portal) for the initial subscription term and any renewal subscription term(s). Customer further authorizes ApplyBoard to use a third party to process payments and consents to the disclosure of Customer’s payment information to such third party. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If an Order specifies that payment will be by a method other than a credit card, ApplyBoard will invoice Customer in advance and/or otherwise in accordance with the relevant Order. In such case, unless otherwise stated in the Order, invoiced fees are due 30 days from the invoice date. Customer is responsible for providing complete and accurate billing information to ApplyBoard and notifying ApplyBoard of any changes to such information.

• 4.3

  Interest on Overdue Amounts. If any invoiced amount is not received by ApplyBoard by the due date, then without limiting ApplyBoard’s rights or remedies, those charges may accrue late interest at the rate of 2.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

• 4.4

  Disputes. If Customer wishes to raise a good faith dispute with respect to an invoice, it must do so within fifteen (15) days of its receipt of an invoice (or, in the case of payment by credit card, within fifteen (15) days of the charge on the credit card) by notifying ApplyBoard thereof. In such a case, ApplyBoard and Customer will work cooperatively in good faith to resolve the dispute.

• 4.5

  Taxes. ApplyBoard’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes assessable by any jurisdiction whatsoever ("Taxes"). Customer is responsible for paying all Taxes associated with TrainHub ordered in an Order. If ApplyBoard has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, ApplyBoard will invoice Customer for such Taxes and Customer shall pay such amounts.

• 4.6

  Suspension for Non-Payment. ApplyBoard will notify Customer (by email, platform-notification or other method as may be determined by ApplyBoard) of non-payment of any amount due. Unless Customer pays the full amount due within ten (10) days of provision of such notice, ApplyBoard may, without limiting its other rights or remedies, suspend Customer’s access to the TrainHub. If TrainHub is suspended for non-payment, ApplyBoard may charge a re-activation fee to reinstate the TrainHub.

5.  TERM AND TERMINATION

• 5.1

  Effect of Terms of ServiceThese Terms of Service commence on the date Customer first accepts them and continue until all subscriptions for TrainHub agreed upon in Orders made hereunder have expired or have been terminated.

• 5.2

  Subscription Term. The initial term of each subscription shall be as specified in the applicable Order. If there is no initial subscription term specified in the Order, the initial subscription term shall be one (1) year from the date of the Order. Except as otherwise specified in the applicable Order, each subscription will automatically renew for renewal periods that are equal in duration to the initial subscription term or one year, whichever is shorter.

• 5.3

  Notice of Non-Renewal. Either Party may prevent automatic renewal of a subscription by notifying the other Party (email acceptable) of its intent not to renew the subscription at least thirty (30) days prior to the end of the then-current initial or renewal subscription term.

• 5.4

  Termination for Cause. A party may terminate these Terms of Service for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

• 5.5

  Refund or Payment. If these Terms of Service are terminated by Customer in accordance with the “Termination for Cause” section above, ApplyBoard will refund Customer any prepaid but unused fees covering use of the TrainHub after the effective date of termination. If these Terms of Service are terminated by ApplyBoard in accordance with the “Termination for Cause” section above, Customer will pay all unpaid fees covering the remainder of the then-current term for all Orders to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to ApplyBoard for the period prior to the effective date of termination.

6.  CONFIDENTIALITY

• 6.1

  Confidential Information. “Confidential Information” means any and all information of Customer or ApplyBoard (the “Disclosing Party”) or any of their licensors, customers, employees or other service providers that has come or will come into the possession or knowledge of the other Party (the “Receiving Party”) in connection with or as a result of entering into these Terms of Service or provision or receipt of TrainHub under these Terms of Service, including, without limitation, industry data and information concerning the Disclosing Party’s past, present or future customers, suppliers, technologies, systems, products, strategies, business models or processes. For greater certainty, these Terms of Service, the TrainHub, the Content, and any software (in object code or source code) and documentation with respect thereto made available to Customer under these Terms of Service constitute Confidential Information of ApplyBoard, as Disclosing Party. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party's breach of the confidentiality obligations herein; (ii) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Receiving Party's possession prior to Disclosing Party's disclosure thereof; or (iv) was or is independently developed by Receiving Party without using any of Disclosing Party’s Confidential Information.

• 6.2

  Receiving Party Obligations. Receiving Party shall: (i) protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, and in no event with less than a commercially-reasonable degree of care; (ii) only use Disclosing Party's Confidential Information, and only permit it to be accessed or used, for the purpose of exercising its rights or performing its obligations under these Terms of Service and the Orders made by the Parties; and (iii) except as authorized by Disclosing Party in writing, limit access to Disclosing Party’s Confidential Information to those of its and its affiliates’ directors, officers, employees and third party contractors who need that access for purposes consistent with these Terms of Service and the Orders entered into by the Parties and who are bound by obligations of confidentiality materially as protective as the confidentiality obligations herein. If Receiving Party becomes aware of any loss of or unauthorized access to or disclosure of Disclosing Party’s Confidential Information, Receiving Party will notify Disclosing Party without undue delay.

• 6.3

  Disclosure required by Law. If Receiving Party is required by applicable law or legal process to disclose any of Disclosing Party’s Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.

• 6.4

  Injunctive Relief. Each Party acknowledges that the other Party will be irreparably harmed if Confidential Information of such other is disclosed in breach of the confidentiality obligations herein and that such other Party would not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each of the Parties agrees that the other Party shall be entitled to seek injunctive relief against any actual or threatened breaches of the confidentiality obligations herein by the other Party without the necessity of showing actual damages or showing that monetary damages would not afford an adequate remedy.

• 6.5

  Confidential Information and Termination. On expiry or termination of these Terms of Service, each Party, as a Receiving Party, will securely destroy or, at the other Party’s (as a Disclosing Party) request, deliver to Disclosing Party all Confidential Information of Disclosing Party in Receiving Party’s control or possession, promptly after the effective date of termination, except to the extent Receiving Party is required to maintain a copy for the purposes of compliance with applicable law or during the period of any dispute between the Parties for the purposes of such dispute, provided that Receiving Party will continue to abide by any obligations of confidentiality in these Terms of Service.

7.  REPRESENTATIONS AND DISCLAIMERS

• 7.1

  Representations. Each party represents to the other Party that it has the right and authority to enter into these Terms of Service and has validly entered into these Terms of Service.

• 7.2

  Disclaimers.

  7.2.1.

  EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRAINHUB AND THE CONTENT ARE PROVIDED ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, AVAILABILITY, COMPLETENESS, QUIET ENJOYMENT, RELIABILITY, ACCURACY, CURRENCY, TIMELINESS, SECURITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. APPLYBOARD DOES NOT WARRANT THAT THE TRAINHUB WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.

  7.2.2.

  THE TRAINHUB AND THE CONTENT MAY CONTAIN ERRORS, OMISSIONS AND INACCURACIES, AND SOME CONTENT MAY NOT BE UP TO DATE. APPLYBOARD DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE TRAINHUB OR THE CONTENT. IT IS CUSTOMER’S RESPONSIBILITY TO EXERCISE CARE AND DILIGENCE IN EVALUATING THE ACCURACY, COMPLETENESS, USEFULNESS AND CURRENCY OF ANY CONTENT. USE OF THE TRAINHUB AND CONTENT IS SOLELY AT CUSTOMER’S OWN RISK.

8.  INDEMNIFICATION

• 8.1

  Indemnification by ApplyBoard. ApplyBoard will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that TrainHub ordered by Customer under an Order made hereunder infringes or misappropriates such third party’s intellectual property rights, and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by ApplyBoard in writing of, such a claim as described in this Section, provided that Customer (a) promptly gives ApplyBoard written notice of such claim, (b) gives ApplyBoard sole control of the defense and settlement of the claim (except that ApplyBoard may not settle any such claim unless it unconditionally releases Customer of all liability), and (c) gives ApplyBoard all reasonable assistance, at ApplyBoard’s expense. If the TrainHub or the Content, or any part thereof becomes, or, in ApplyBoard’s opinion is likely to become, the subject of a third party claim alleging infringement or misappropriation of intellectual property rights, ApplyBoard may, at its discretion: (i) procure the right for Customer to continue using the allegedly infringing aspect of TrainHub; (ii) update or modify the allegedly infringing aspect of TrainHub so that it becomes non-infringing; or (iii) terminate the subscription for the allegedly infringing aspect of TrainHub and refund to Customer any prepaid fees for TrainHub not provided due to the early termination of the Subscription Term. Notwithstanding the foregoing, the defense and indemnification obligations set out above do not apply if (I) the allegation does not state with specificity that the TrainHub are the basis of the claim; (II) the claim arises from the use or combination of the TrainHub or any part thereof with software, hardware, data, or processes not provided by ApplyBoard, if the TrainHub or use thereof would not infringe without such combination; (III) the claim arises from TrainHub provided without charge; or (IV) the claim arises in connection with Customer’s breach of these Terms of Service or applicable Orders.

• 8.2

  Indemnification by Customer. Customer will defend ApplyBoard and its Affiliates against any claim, demand, suit or proceeding made or brought against ApplyBoard by a third party arising in connection with: (a) Customer’s use of a non-ApplyBoard application, component, software or service made available by a third party which Customer has chosen to use or integrate with TrainHub (a “Third Party Application”) (including any allegation that the combination of a Third Party Application and TrainHub infringes or misappropriates a third party’s intellectual property rights), (b) Customer’s use of the TrainHub or Content in violation of applicable law; (c) Customer’s breach of these Terms of Service or an Order; or (d) Customer Data or Customer’s use thereof with TrainHub (each a “Customer), and will indemnify ApplyBoard from any damages, attorney fees and costs finally awarded against ApplyBoard as a result of, or for any amounts paid by ApplyBoard under a settlement approved by Customer in writing of, a a claim described in this Section, provided ApplyBoard (i) promptly gives Customer written notice of such claim, (ii) gives Customer sole control of the defense and settlement of the claim (except that Customer may not settle any such claim unless it unconditionally releases ApplyBoard of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if the claim arises from ApplyBoard’s breach of these Terms of Service or applicable Orders.

• 8.3

  Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

9.  LIMITATION AND EXCLUSIONS OF LIABILITY

• 9.1

  Limitation of Liability. In no event shall the aggregate liability of each Party together with all of its Affiliates arising out of or in connection with these Terms of Service and the Orders made hereunder exceed the total amount paid by Customer and its Affiliates hereunder for the TrainHub giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is based in contract, tort, negligence, strict liability or any other legal theory but will not limit Customer’s obligation to pay fees owing hereunder or either Party’s obligations under the section “Indemnification”. For certainty, the existence of one or more claims under these Terms of Service will not increase the limitation of liability set out in this section.

• 9.2

  Exclusions of Liability. In no event will either Party or its Affiliates have any liability arising out of or in connection with these Terms of Service and the Orders made hereunder for any loss of profits, loss of revenues, loss of opportunity, loss of use, loss of data, loss of business or loss of goodwill, or for any fines or penalties, or for any indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is based in contract, tort, negligence, strict liability or any other legal theory, even if a Party or its Affiliates have been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.

• 9.3

  Claims Limitation. To the maximum extent permitted by law, any claim by a Party against the other in connection with these Terms of Service or the Orders made hereunder must be made within two (2) years of the event giving rise to the claim.

10.  INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS

• 10.1

  Customer Trademarks. In order to provide TrainHub to Customer, ApplyBoard relies on Customer to provide ApplyBoard with the necessary rights to Customer’s trademark and logos (“Trademarks”). Accordingly, Customer grants to ApplyBoard during the subscription term of the TrainHub which requires use or display of Customer’s Trademarks, a non-exclusive, revocable, royalty-free, paid up license to use, reproduce and display Customer’s name and Trademarks and enable ApplyBoard’s employees and contractors to use such Trademarks solely for the purposes of making the TrainHub available to Customer. If Customer revokes such license, Customer acknowledges and agrees that such revocation may impact the user interface for the TrainHub.

• 10.2

  Reservation of Rights. Nothing in these Terms of Service shall affect each Party’s ownership of and rights to its respective intellectual property (or the intellectual property rights of each Party’s respective licensors). Customer acknowledges and agrees that the TrainHub, the Content, and all related documentation (in each case, other than any Trademarks which may be incorporated therein) and all software, algorithms, code, technology and intellectual property underlying or included within the foregoing, and all intellectual property rights therein and thereto throughout the world are the sole and exclusive property of ApplyBoard, its affiliates and their respective licensors. Each Party acknowledges and agrees that it does not acquire any intellectual property or other proprietary rights under these Terms of Service, including any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the intellectual property of the other Party, its affiliates and their respective licensors, other than as expressly set out in these Terms of Service. Any rights not expressly granted under these Terms of Service are reserved. ApplyBoard, its affiliates and their respective licensors’ rights extend to all enhancements, updates and modifications to TrainHub and the Content, regardless of who created or developed such enhancements, updates or modification. Customer acknowledges and agrees that ApplyBoard is not bound by any duty of confidentiality with respect to any such enhancements, updates and modifications.

• 10.3

  Usage Data. ApplyBoard may collect and use data, information, or insights generated or derived from the use of TrainHub (“Usage Data”) for its business purposes, including industry analysis, benchmarking, analytics, marketing, training, and improving and developing its products and services. ApplyBoard will de-identify and anonymize all Usage Data, and will disclose such Usage Data in aggregate form only in a manner that does not identify Customer, its Users, or Customer's Confidential Information. All individual data elements of the Usage Data are property of their respective owners. All Usage Data is wholly owned by ApplyBoard.

• 10.4

  Feedback. Customer may provide ApplyBoard with feedback related to its use of the TrainHub including suggestions for new content and features, and will use reasonable efforts to promptly report to ApplyBoard any errors, bugs or difficulties with the TrainHub along with any other information reasonably requested by ApplyBoard to aid in resolving such errors, bugs or difficulties (collectively, “Feedback”). Customer agrees that: (i) Feedback constitutes ApplyBoard’s Confidential Information; (ii) Feedback is not proprietary information of Customer or any third party and Customer has all of the necessary rights to disclose the Feedback; (iii) ApplyBoard may freely use, publicize, license, distribute, and otherwise commercialize Feedback for any other purpose without restriction (although, for certainty, any disclosure of Feedback will not name Customer); and (iv) Customer is not entitled to receive any compensation of any kind in respect of the Feedback.

11.  GENERAL

• 11.1

  Notices.

  11.1.1.

  Notices to ApplyBoard. Customer may provide notice to ApplyBoard by email at info@trainhub.com other than notices of termination for cause or an indemnifiable claim (“Legal Notices”). Legal Notices must be provided by Customer to ApplyBoard by registered mail or delivered by hand to ApplyBoard at 101 Frederick Street, Suite 600, Kitchener, ON N2H 6R3, or such other address of which ApplyBoard may notify Customer from time to time. Notices will be deemed delivered on the date received.

  11.1.2.

  Notices to Customer. ApplyBoard may provide notice to Customer by email to the email address(es) on record in ApplyBoard’s account information for Customer or by sending the notice through an on-platform notification, as ApplyBoard determines in its sole discretion. Customer is responsible for providing ApplyBoard with its most current email address and updating such information on the TrainHub platform as required. ApplyBoard is not responsible for any automatic filtering that Customer or Customer’s network provider may apply to email notifications that ApplyBoard sends to the email address(es) provided to ApplyBoard. Notice will be deemed effective on the date sent, unless ApplyBoard has received an error or similar message in respect thereof, in which case the notice is not effective.

• 11.2

  Amendments. ApplyBoard may modify the Terms of Service from time to time, including these TrainHub Terms in accordance with the introductory section of these Terms of Service.

• 11.3

  Cooperation. ApplyBoard may require Customer’s cooperation to provide the TrainHub, and Customer will provide such good faith reasonable cooperation as ApplyBoard may request.

• 11.4

  Trial Services. From time to time, ApplyBoard may make Content and features of TrainHub not specifically ordered under an Order available to Customer on a beta, trial, early-access and/or limited time or limited use basis at no charge to Customer (“Trial Services”). Customer may choose whether to try such Trial Services or not in its sole discretion. Customer acknowledges and agrees that Trial Services constitute TrainHub and are provided subject to the terms and conditions of these Terms of Service and only on a beta, trial, early-access and/or limited time basis. As Trial Services are provided at no charge, ApplyBoard reserves the right to discontinue any or all of such Trial Services at any time without notice. ApplyBoard further reserves the right to make such Trial Services available only on a subscription, licensed, or other basis for a fee. In such a case, ApplyBoard will provide an Order setting out the applicable fees and other terms and conditions with respect thereto, which Customer may choose to accept or decline.

• 11.5

  Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with these Terms of Service. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the foregoing.

• 11.6

  Export Compliance. Customer agrees that it will not directly or indirectly export, re-export or transfer the TrainHub to prohibited countries or individuals or permit use of the TrainHub in prohibited countries or by prohibited individuals.

• 11.7

  Assignment. Either Party may assign these Terms of Service (including all Orders) to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale or all or substantially all of its assets. Other than the assignments permitted in the foregoing sentence, neither Party shall assign these Terms of Service (or any Order) without the prior written consent of the other Party (not to be unreasonably withheld). These Terms of Service shall enure to the benefit of successors and permitted assigns.

• 11.8

  Survival. The articles and sections titled “FEES AND PAYMENT”, “CONFIDENTIALITY”, “Disclaimers”, “LIMITATIONS AND EXCLUSIONS OF LIABILITY”, “INDEMNIFICATION”, “Reservation of Rights”, “Usage Data”, “Feedback”, “Termination Refund or Payment,” and “GENERAL” will survive any termination or expiration of these Terms of Service.

• 11.9

  Third Party Service Providers. Customer acknowledges and agrees that in delivering the TrainHub, ApplyBoard may work with third parties, including third party service providers and ApplyBoard group companies which are located internationally. ApplyBoard’s use of a third party in providing the TrainHub and/or performing obligations hereunder will not relieve ApplyBoard of its obligations to Customer. Further, the TrainHub made available to Customer may contain or incorporate embedded third party software, which may only be used in conjunction with the TrainHub and may not be used separately.

• 11.10

  Optional Third Party Applications. If Customer elects to use or integrate a Third Party Application with the TrainHub, Customer acknowledges and agrees that: (i) ApplyBoard and its licensors are not responsible or liable whatsoever for any Third Party Applications; and (ii) use of Third Party Applications is at Customer’s own discretion and risk. Customer acknowledges and agrees that the use of any Third Party Applications is governed by such Third Party Applications’ terms of use, license agreement, or other terms and conditions, and that any information or personal data Customer provides, whether knowingly or unknowingly, to such Third Party Application, will be subject to such Third Party Applications’ privacy policy, if such a policy exists. Customer is solely responsible for any fees, charges, losses or damages that results from using Third Party Applications without any apportionment or attribution to ApplyBoard and its licensors. Insofar as Customer uses the TrainHub with any Third Party Applications, Customer warrants that it has obtained and complied with the necessary license or terms and has obtained a right to do so from the relevant third parties.

• 11.11

  Linked Websites; Disabling Code; Communications over the Internet. The TrainHub may display links to third party websites. The content in any third party linked website is not under ApplyBoard’s control and does not form part of the TrainHub, and if Customer chooses to access any such website, Customer does so entirely at its own risk. ApplyBoard cannot and does not guarantee or warrant that the TrainHub or the Content are compatible with Customer’s computer system or that the TrainHub, the Content, or any links therefrom, will be free of malware, viruses, or other code that manifests contaminating or destructive properties. Customer is responsible for implementing safeguards to protect the security and integrity of its computer system and Customer is responsible for the entire cost of any service, repairs or connections of and to Customer’s computer system that may be necessary as a result of its use of the TrainHub. ApplyBoard cannot and does not guarantee the security of data transmitted over the Internet or public networks including, without limitation, the confidentiality of any communications made by Customer through the TrainHub.

• 11.12

  Governing Law; Venue. These Terms of Service will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Each of the Parties irrevocably submits to the exclusive jurisdiction and venue of the courts in Toronto, Ontario for the purpose of any suit, action or other proceeding arising out of or in connection with these Terms of Service or the subject matter hereof brought by either Party or their successors or assignees.

• 11.13

  Relationship of the Parties. ApplyBoard’s relationship to Customer is that of an independent service provider. Nothing in these Terms of Service shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Notwithstanding anything to the contrary, ApplyBoard provides services on a non-exclusive basis to Customer.

• 11.14

  Third Party Beneficiaries. There are no third party beneficiaries under these Terms of Service other than ApplyBoard’s licensors, solely to the extent required to enable such licensors to directly enforce provisions herein relating to protection of their intellectual property.

• 11.15

  Force Majeure. Neither Party will be liable to the other for any failure or delay to perform under these Terms of Service or an Order made hereunder if such failure or delay is caused by an event beyond its reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay or denial of service attack.

• 11.16

  Severability. In the event that any provision herein, or part thereof, will be deemed, invalid, illegal or unenforceable by a court, these Terms of Service will continue in force with respect to the enforceable provisions and all rights accrued under the enforceable provisions will survive any such declaration, and any non-enforceable provision will, to the extent permitted by law, be replaced by a provision which, being valid, comes closest to the intention underlying the invalid, illegal or unenforceable provision.

• 11.17

  Waiver. No failure or delay by either Party in exercising any right under these Terms of Service will constitute a waiver of that right. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

• 11.18

  Entire Agreement and Order of Precedence. These Terms of Service (including the Orders made hereunder) constitute the entire agreement between ApplyBoard and Customer regarding Customer’s use of the TrainHub and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ApplyBoard regarding future functionality or features. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be, in descending order and only to the extent of the conflict or inconsistency: (i) the applicable Order, only for the Order in which there is a conflict and not generally; and (ii)these TrainHub Terms.

• 11.19

  Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern these Terms of Services or the rights and obligations of the Parties under this Agreement.

• 11.20

  Interpretation. References to the singular include the plural and vice versa and any reference to one gender includes all genders. References to persons shall include bodies corporate, partnerships, unincorporated associations and any other legal or commercial entity or undertaking. Any reference to a clause is to a clause of these Terms of Service. Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. The headings used in these Terms of Service are included for convenience only and shall not be used in construing or interpreting these Terms of Service.

• 11.21

  Preferred Language. It is the express will of the parties that these Terms of Service and all related documents have been drawn up in English. The parties have expressly required that these Terms of Service and any other contract, document or notice relating thereto be drafted in the English language. Les parties aux présentes ont expressément exige que le présent contrat et tout autre contrat, document ou avis y afférent soient rédigés en langue anglaise.

• 11.22

  Contact. If you have any questions about these Terms of Service or if you have any questions or comments regarding the TrainHub, please contact us at info@trainhub.com