Background. This agreement (the “Agreement”), by and between The Linux Foundation, an Oregon nonprofit mutual benefit corporation (“TLF”), and the Company identified in a purchase form or online purchasing method referencing this Agreement (together, the “Parties”), is dated as of the date of the Purchase Form or completion of the online purchase (the “Effective Date”). TLF desires to make available to Company, and Company desires to obtain from TLF, training courses or certification exams in connection with open-source communities and technologies. The Parties desire to set forth the terms and conditions that shall govern, as applicable, the payment, purchase and delivery of such courses and exams. Accordingly, the Parties agree as follows:

1. The Agreement.
   1. Structure. The Agreement consists of:
      1. these Training and Certification Terms (the “Terms”);
      2. the Data Protection Addendum at https://www.linuxfoundation.org/legal/dpa/event-sponsorship-education/ (the “DPA”); and
      3. if purchase was via a purchase form that refers to these terms, then that purchase form (the “Purchase Form”).
   2. Purpose. The Parties intend that from time to time during the term of this Agreement, Company may, if applicable, purchase from TLF one or more of the training and certification offerings defined in Section 1.3 (each, an “Education Engagement”). These Terms set forth the legal terms that shall govern all such engagements. The DPA sets forth the obligations that shall govern the Parties’ transfer and use of personal data of Company’s participants in the Education Engagements. Each Purchase Form shall specify the business terms (including Education Engagement dates and locations, fees, and requirements) that apply to one or more Education Engagements.
   3. Education Engagements. TLF’s Education offerings include:
      1. “eLearning Courses”: training courses consisting of previously-created material delivered remotely over the internet;
      2. “Virtual Courses”: instructor-led training courses delivered remotely over the internet;
      3. “Onsite Courses”: instructor-led training courses delivered in person, on-site at a facility agreed upon by Company and TLF; and
      4. “Certification Exams”: certification and technical credential exams conducted over the internet.

      As used herein, “Training Courses” refers to eLearning Courses, Virtual Courses and Onsite Courses.

   4. Order of Precedence. In the event of a conflict between the provisions of the documents comprising this Agreement, the order of precedence shall be the DPA, then these Terms, then Purchase Forms. A provision of a Purchase Form shall not take precedence over a conflicting provision in these Terms or the DPA unless it explicitly states that it is intended to apply notwithstanding that conflicting provision in these Terms or the DPA.
2. Term and Termination.
   1. Term. This Agreement shall commence as of the Effective Date and shall continue until terminated as set forth in this Section 2. Each Purchase Form shall commence on the date set forth therein and shall continue until the Parties’ obligations set forth therein are fulfilled, except as otherwise set forth in this Section 2. If a Purchase Form indicates that it automatically renews, then at the end of each then-current term it will renew and continue for a subsequent renewal term as indicated therein, unless either Party provides written notice of non-renewal at least 30 days prior to the end of the then-current term.
   2. Termination for Convenience. Either Party may terminate the Agreement upon 30 days’ written notice to the other Party. Termination pursuant to this Section 2.2 shall not affect either Party’s obligations with regards to Purchase Forms entered into prior to the effective date of such termination, and the Agreement shall continue to apply to Education Engagements and all obligations of each Party under such Purchase Forms until completed.
   3. Termination of Purchase Form for Cause. Either Party may terminate a Purchase Form if the other Party materially breaches its obligations under that Purchase Form and fails to cure such breach within 30 days following written notice thereof. If a Purchase Form is terminated by Company under this Section 2.3 due to an uncured material breach of the Purchase Form by TLF, then with regards to the remainder of the then-current term, Company will not owe the pro rata Education Engagement Fees corresponding to that remainder of the term, and TLF will provide a pro rata refund of any prepaid Education Engagement Fees corresponding to the remainder of that term. Termination pursuant to this Section 2.3 shall not affect either Party’s obligations with regards to other Purchase Forms or to the Agreement overall.
   4. Termination of Agreement for Cause. Either Party may terminate the Agreement (including all Purchase Forms hereunder) if the other Party materially breaches these Terms or the DPA and fails to cure such breach within 30 days following written notice thereof. If the Agreement is terminated by Company under this Section 2.4 due to an uncured material breach of these Terms or the DPA by TLF, then with regards to any Purchase Forms for the remainder of the then-current term, Company will not owe the pro rata Education Engagement Fees corresponding to that remainder of the term, and TLF will provide a pro rata refund of any prepaid Education Engagement Fees corresponding to the remainder of that term.
   5. Suspension during Period of Breach. During any period when Company is in breach of this Agreement and has not yet cured such breach, TLF may in its discretion: (a) suspend access to and provision of the Education Engagements to Company and its Authorized Participants; (b) withhold the other benefits corresponding to the applicable Education Engagements; and (c) not accept any new Education orders from Company. Any such suspension shall not affect Company’s obligation to pay the Education Engagement Fees or other obligations set forth in the Agreement. Upon Company’s cure of all such breaches, TLF will use reasonable efforts to restore access to and provision of the affected Education Engagements, and other benefits, but TLF shall not be required to do so to the extent TLF determines it is impracticable (such as due to resulting delays and scheduling difficulties for the applicable Education Engagements).
   6. Survival. Sections 1, 2, 3.1, 3.4, 3.8, and 4-9 of these Terms, and the entirety of the DPA, shall survive termination of this Agreement for any reason. For the avoidance of doubt, where applicable, Company’s obligations to pay Education Engagement Fees shall survive termination or expiration of any Purchase Form (except upon termination by Company for cause).
3. Education Engagements.
   1. Fees. For each Education Engagement set forth in a Purchase Form, where applicable, Company shall pay to TLF the fees set forth on the Purchase Form (each, an “Education Engagement Fee”).
   2. Provision of Education Engagements. In exchange for the payment of the Education Engagement Fees, subject to the terms of the Agreement, Company shall receive the corresponding Education Engagements set forth in the applicable Purchase Form.
   3. Authorized Participants. As used herein, “Authorized Participant” means an individual who, at the time of taking any Education Engagement, satisfies each of the following requirements: (a) is employed, or engaged as a contractor, by Company; (b) maintains a valid email address under Company’s corporate domain names that are specified in the corresponding Purchase Form; and (c) for per-seat Education Engagements, has been allocated a license seat for that Education Engagement pursuant to the applicable Purchase Form. License seats for Education Engagements may not be reused or transferred from one individual to another without the written permission of TLF. Company shall not permit any individual who is not an Authorized Participant to access the Training Courses or Certification Exams or their related Materials, as defined below. As part of the registration for Training Courses and Certification Exams, Authorized Participants may be required to (a) use TLF’s online registration system for signing up, using the coupon codes provided or otherwise, and to create a Linux Foundation ID (LFID); and (b) accept TLF’s privacy policy and terms and conditions for the applicable Training Course or Certification Exam. Company shall be responsible for the acts and omissions of its Authorized Participants with regards to their conduct in the Education Engagements, and their use of the provided content of any Training Courses and Certification Exams, including any such written, printed, electronic, audio, or video content (collectively, “Materials”).
   4. Data Privacy and Education Engagements. Each Party will comply with the DPA with regards to information that is shared regarding Authorized Participants’ participation in the Education Engagements.
   5. Education Engagement Types. The following terms apply to any Education Engagements accessed by Authorized Participants hereunder, subject to Company’s compliance with this Agreement, and during the term and subject to the other quantities and limitations specified in the applicable Purchase Form:
      1. 3.5(a). eLearning Courses. TLF authorizes Company to provide the applicable eLearning Courses and Materials to Authorized Participants remotely over the internet. The specific details of the eLearning Course, including the manner in which TLF’s and/or Company’s respective learning management systems may be used, and the nature of the purchase (single eLearning course, vouchers, subscriptions, bundles, or similar) will be specified in the applicable Purchase Form. Company is responsible for ensuring that Authorized Participants have all necessary equipment and network access to participate in the eLearning Course.
      2. 3.5(b). Virtual Courses. An employee or contractor of TLF will provide the applicable Virtual Course classes and Materials to Company’s Authorized Participants remotely over the internet, with timing as set forth in the Purchase Form. Company is responsible for ensuring that Authorized Participants have all necessary equipment and network access to participate in the Virtual Course.
      3. 3.5(c). Onsite Courses. An employee or contractor of TLF will provide the applicable Onsite Course classes and Materials to Company’s Authorized Participants at a facility agreed upon by Company and TLF, with location and timing as set forth in the Purchase Form. Company will supply the facility and the equipment set forth at https://training.linuxfoundation.org/about/policies/on-site-training-facility-requirements/ or as may be otherwise indicated by TLF from time to time. If TLF agrees to provide hardware, Company will be liable for any loss or destruction of this equipment and hardware used in connection with the Onsite Course or otherwise.
      4. 3.5(d). Certification Exams. TLF will make available to Company coupon codes or authorized seats (in the case of a subscription) for use by Authorized Participants that desire to register for a Certification Exam. Use of these is subject to any limitations on use (including time limitations) specified in the applicable Purchase Form. Company acknowledges and agrees that, as part of the registration for any Certification Exam, the Authorized Participants may be required to accept TLF’s terms and conditions for the applicable Certification Exam.
   6. Company Responsibilities.
      1. 3.6(a). General. Without limitation of Company’s other responsibilities set forth herein, Company shall be solely responsible for (i) assessing each Authorized Participant’s suitability for any Training Course or Certification Exam; (ii) ensuring enrollment of its Authorized Participants in the appropriate Training Courses or Certification Exams; and (iii) its Authorized Participants’ participation in any Training Course or Certification Exam. Company will not solicit any instructor of a Virtual Course or an Onsite Course for further services for any purpose (including training) other than through TLF, except for routine courtesy and follow-up questions, until the earlier of (1) twelve months after delivery of the applicable Training Course, and (2) when the instructor ceases to be an employee or contractor of TLF.
      2. 3.6(b). Facilities for Onsite Courses. Company shall be solely responsible for ensuring that the facilities it provides for Onsite Courses are safe, secure and compliant with all applicable laws, including applicable workplace health and safety regulations and requirements. If Company is unable to provide a suitable facility and environment, Company shall immediately contact TLF to discuss.
   7. Company Marks and Education Engagements. TLF may use Company’s name and logo (the “Company Marks”) on TLF’s web site and similar public materials to identify Company as a client of TLF’s training and certification offerings. Any goodwill arising from such use of the Company Marks will inure to the benefit of Company. Upon receipt of written notice from Company, TLF will, as applicable, (a) remove the Company Marks from TLF’s web site and similar public materials, or (b) correct any instances where TLF’s use of the Company Marks does not conform with Company’s trademark usage guidelines.
   8. Intellectual Property Rights for Materials. The Materials are protected by copyright and other intellectual property rights. The Materials are provided for individual use by Authorized Participants in the form in which they are provided. Except as otherwise indicated in the Materials themselves, they may not be copied, modified, distributed to anyone other than Authorized Participants or used to provide training to others without the prior written consent of TLF. Open source code incorporated in the Materials may have other copyright holders and is used pursuant to the applicable open source license. Company will inform all Authorized Participants that the Materials incorporate proprietary materials and Company will not remove any proprietary markings on any of the Materials. For any feedback Company or its Authorized Participants might provide to TLF with respect to any Materials, Company hereby grants to TLF a perpetual, irrevocable, worldwide, royalty-free license to such feedback.
4. Payments.
   1. Invoices. Where applicable, TLF or its designee will submit an invoice to Company. Unless otherwise directed by Company, all PO(s), invoices and payments will be issued through the designated invoice and payment system of Company, which TLF will use reasonable efforts to use; provided, that TLF shall not be required to accept any requirements not specified in this Agreement in connection with such system, and TLF may require the use of an alternative invoice and payment process in its discretion.
   2. Method of Payment. Company may make payment by wire transfer, check, or credit card, or by any alternative method that is approved by TLF. If Company makes payment by credit card, then TLF may charge an additional processing fee.
   3. Taxes. TLF operates as a tax-exempt organization in the United States. Company shall be responsible for the payment of all taxes applicable to the Education Engagement Fees, irrespective of the jurisdiction where such taxes may be levied, excluding only taxes on TLF’s net income.
   4. Payment Due Date. As applicable and except where otherwise specified in a Purchase Form, Company shall pay all invoiced Education Engagement Fees within 30 days following receipt of the invoice. If Company does not pay the Education Engagement Fees prior to the applicable due dates, TLF may suspend the corresponding Education Engagements as set forth in Section 2.5 above.
5. Confidentiality.
   1. Confidential Information. As used herein, “Confidential Information” shall include Company’s business, financial, and strategic information, which is maintained by the discloser as confidential and is inadvertently disclosed by Company’s Authorized Participants to the instructor during a Virtual Course or an Onsite Course, where it is either: (i) identified in writing at the time of disclosure as confidential by an appropriate legend or marking, or (ii) identified orally at the time of disclosure as confidential and then subsequently identified by written notice as confidential within 15 days following such disclosure. Notwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include any of the following, even if marked confidential or proprietary: (a) information in TLF’s possession at the time of disclosure; (b) information independently developed by TLF without use of or reference to Confidential Information; (c) information known publicly, before or after disclosure, other than as a result of TLF’s improper action or inaction; or (d) information approved for release in writing by Company; (e) information that relates to the code base of any open source or open standards project (collectively, “Open Project”), including any existing or future contribution thereto; (f) information generally relating or pertaining to the formation or operation of any Open Project; or (g) information relating to general business matters involving any Open Project.
   2. Obligations. For two years following the applicable Virtual Course or Onsite Course, TLF shall not disclose the Confidential Information of Company to a third party, nor use it for any purpose other than the exercise of its rights and performance of its obligations hereunder.
   3. Directions to Authorized Participants. No Confidential Information is required to teach the courses. Prior to each Virtual Course and Onsite Course, TLF’s instructors will instruct the Authorized Participants not to disclose Confidential Information.
   4. Additional Restrictions. Additionally, neither Party may disclose the specific dollar amounts paid by Company to TLF without the specific written authorization from the other Party. The preceding sentence shall not prevent disclosure of such amounts to the Party’s directors, advisors and other representatives, or disclosure as necessary to perform the Party’s obligations hereunder or as may be required by law.
6. Disclaimer.
   TLF MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO EDUCATION ENGAGEMENTS, THE MATERIALS OR THIS AGREEMENT, EITHER TO COMPANY, TO THE AUTHORIZED PARTICIPANTS OR TO ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TLF DOES NOT WARRANT THAT THE MATERIALS OR EDUCATION ENGAGEMENTS WILL BE FREE FROM BUGS, DEFECTS, DATA LOSS OR ERRORS, OR WILL BE ACCESSIBLE WITHOUT INTERRUPTION.
7. Limitation of Liability.
   NEITHER PARTY SHALL BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (2) ANY DAMAGES IN AN AMOUNT EXCEEDING EDUCATION ENGAGEMENT FEE FOR THE EDUCATION ENGAGEMENT TO WHICH THE LIABILITY RELATES, IN EACH CASE WHERE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF TLF TO COMPANY AND ALL OTHER PARTIES AFFILIATED WITH COMPANY RELATING TO OR ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE EXPENSE OF ANY INDEMNIFICATION OR SIMILAR OBLIGATION, SHALL NOT EXCEED THE AMOUNT INSURED AND ACTUALLY PAID OUT UNDER THE GENERAL COMMERCIAL INSURANCE POLICY OF TLF. THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS OF THE DECISION OF TLF TO OFFER THE EDUCATION ENGAGEMENTS AND SHALL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH DAMAGES MAY BE CLAIMED, REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE FOREGOING LIMITATIONS OF LIABILITY CAUSE ANY REMEDY TO FAIL IN ITS ESSENTIAL PURPOSE.
8. Indemnification.
   Each Party (“Indemnitor”) will defend and indemnify the other Party (“Indemnitee”), its officers, directors, and employees from any claims and liabilities (“Claims”) brought by a third party to the extent related to (a) the Indemnitor’s violation of any applicable laws, rules, or regulations in connection with performance of its obligations under this Agreement; and (b) in the case of TLF, an actual or alleged infringement of a third party’s copyright, confidential information or trade secret by the unmodified Materials (excluding any open source software incorporated therein) as provided by TLF hereunder. The foregoing obligation is conditioned on the following: (i) the Indemnitee will promptly notify the Indemnitor of the Claim; and (ii) the Indemnitee will provide the Indemnitor, at the Indemnitor’s expense, all reasonable information and assistance, and authority to defend or settle the Claim. The Indemnitor will not compromise or settle such Claim without the Indemnitee’s prior written consent, which consent will not be unreasonably withheld.
9. Miscellaneous.
   1. Entire Agreement; Modifications. Each Party acknowledges that they have read this Agreement, understand it and that it is the complete and exclusive statement of their agreement which supersedes any prior agreement, oral or written, between the Parties regarding Company’s purchase of the Education Engagements. No modification of this Agreement shall be enforceable against either Party unless in writing signed by such Party. Legal terms (including policies purporting to be legally binding) in purchase orders, payment documents, or similar documents Company submits to TLF will not amend or become part of this Agreement and will not be binding on TLF. All such terms are hereby rejected.
   2. Relationship of the Parties. For all purposes of this Agreement, each Party shall be and act as an independent contractor and not as a partner, joint venturer, representative or agent of the other. Neither Party has any authority to act on behalf of or to enter into any contract, incur any liability or make any representation or warranty on behalf of the other Party.
   3. Governing Law and Jurisdiction; Arbitration. This Agreement shall be governed exclusively by the laws of the State of Delaware, without reference to its principles of conflicts of law, the 1980 UN Conventions on Contracts for the International Sale of Goods, or other international laws. For any controversy or claim arising out of or relating to this contract: if Company is headquartered in the USA, then the Parties consent to the personal and exclusive jurisdiction of the federal and state courts in Delaware; otherwise, if Company is headquartered outside the USA, then any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, the seat of arbitration shall be Delaware, and the parties agree to use remote video- or tele-conferencing for all hearings.
   4. Notices. Any notice under this Agreement shall be given in writing delivered: (a) if to Company, to the mailing address or email address set forth in the Purchase Form or online ordering form; or (b) if to TLF, to The Linux Foundation, 2810 N. Church St. PMB 57274, Wilmington, DE, 19802, [email protected]. Any such notice shall be deemed to have been delivered and given either: (i) on the delivery date if sent by email or if delivered personally to the Party to whom it is directed; (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt, or (iii) three business days after being mailed by certified mail, postage prepaid, return receipt requested.
   5. Force Majeure. Either Party will be excused for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, fire, flood, embargo, disaster, pandemic or similar global, national or regional spread of disease, riot, sabotage, failure of the Internet, labor shortage or dispute, or governmental act, provided that the affected Party gives the other Party prompt notice of such cause to the extent practicable.
   6. Waiver. A Party’s failure or delay in exercising its rights under the Agreement shall not operate as a waiver of those rights or constitute a waiver of any prior, concurrent, or subsequent breach.
   7. Severability. If any provision of the Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of the Agreement shall nevertheless remain in full force and effect.