Please read this Training Services Agreement (this “Agreement”) carefully. By clicking [“accept”] to this Agreement, you agree to be bound by terms and conditions of this Agreement.
This Agreement is between the person or entity purchasing the Training Services (“Customer”), and Fugue, Inc., a Delaware corporation with its principal office at 47 East All Saints Street, Frederick, MD 21701 (“Fugue”). By clicking [“accept”] to this Agreement, you affirm that you are of legal age and have the legal capacity to enter into this Agreement. If you are entering into this Agreement on behalf of an entity, such as the company you work for, you represent to Fugue that you have the legal authority to bind that entity. If Customer is an entity, Customer’s obligations set forth in this Agreement will also apply to all Customer personnel who receive Training Services.
1. Training Services
1.1. Scope of Training Services. This Agreement relates only to the provision of certain training services for the Fugue software and the Ludwig language (the “Training Services”). If Customer is entering into this Agreement in connection with a separately executed subscription agreement between Fugue and Customer for the licensing of Fugue software (a “Subscription Agreement”), the scope of the Training Services and certain modifications to this Agreement may be set out in a statement of work that references the Subscription Agreement executed by Fugue and Customer (a “Statement of Work”). For the avoidance of doubt, this Agreement does not address the licensing of any Fugue software.
1.2. Performance of Services. Fugue will use commercially reasonable efforts to perform the Training Services, provided that the manner and means by which Fugue chooses to perform the Training Services shall be in Fugue’s sole discretion and control. Depending on the particular Training Services to be provided, Fugue may provide Customer with documents, materials, handbooks, and other works in connection with the Training Services (collectively, the “Training Materials”). The Training Services may be performed at Fugue’s facilities, a third party’s facilities, or at Customer’s facilities. If the Training Services are performed at Fugue’s or a third party’s facilities, Customer agrees to abide by any policies (such as safety, security, and code of conduct policies) disclosed to Customer relating to Customer’s presence at Fugue’s or a third party’s facilities.
1.3. Non-Solicitation. For the term of this Agreement and for twelve (12) months thereafter, Customer agrees not to solicit or retain the services of any person who performed the Training Services for Customer under this Agreement.
2.1 Training Fees. Customer agrees to pay to Fugue the agreed-upon amounts for the Training Services (“Training Fees”).
- If Customer has entered into a Subscription Agreement or other prior agreement with Fugue, the amounts payable for the Training Services may be identified in an order form issued by Fugue to Customer or a purchase order issued by Customer and accepted by Fugue prior to performance of the Training Services. Payment of the Training Fees shall be in accordance with the order form or accepted purchase order terms.
- If Customer has not entered into a prior agreement with Fugue, payment of all Training Fees must be received by Fugue prior to Customer receiving any Training Services. Fugue shall have no obligation to provide any Training Services to Customer until it has received payment of all Training Fees.
2.2. Payment Terms. Except as otherwise set forth in Section 2.1(a), payment of Training Fees may be made to Fugue through Fugue’s website or through Fugue’s authorized third party partners, including but not limited to Eventbrite, as may be designated by Fugue from time to time (each, a “Third Party Partner”), or through other means as agreed between Fugue and Customer. If Customer purchases the Training Services through a Third Party Partner, in addition to this Agreement, such purchase may be governed by the terms and conditions of Customer’s agreement with the Third Party Partner for facilitation of the purchase transaction. Fugue is not responsible for and shall have no liability under any such agreement between Customer and a Third Party Partner. Fugue and Customer may agree that Fugue will invoice Customer for the Training Fees. Unless otherwise specified in a prior agreement between Customer and Fugue covering the Training Services, if Fugue invoices Customer, Customer will pay the invoiced amounts within thirty (30) days of the date of the invoice.
2.3. Expenses. If Fugue performs the Training Services at Customer’s facilities, Customer will reimburse Fugue for all reasonable travel, lodging, communications, shipping charges and other out-of-pocket expenses incurred by Fugue in connection with providing the Training Services. These expenses will be invoiced and paid in accordance with Section 2.2.
2.4. Payment Authorization. If Customer purchases the Training Services either directly from Fugue or through a Third Party Partner using a credit card, Customer may be asked to supply certain relevant information, such as the credit card number and its expiration date and billing address. Customer represents and warrants that it has the right to use any credit card that it submits in connection with such purchase. By submitting such information, Customer grants to Fugue or the Third Party Partner (as applicable) the right to provide such information to third parties for purposes of facilitating the purchase. Verification of information may be required prior to the acknowledgment or completion of any purchase.
3. Term and Termination
The term of this Agreement shall commence on the date that this Agreement has been agreed to by Customer and, unless sooner terminated, shall continue in full force and effect until the Training Services have been delivered and payment for the Training Services has been received by Fugue. Fugue may terminate this Agreement at any time with notice to Customer. If Customer does not receive the Training Services as a result of Fugue’s negligence or omission, Fugue shall refund to Customer the amounts paid by Customer for the unperformed Training Services. The provisions of Sections 2, 3, 4, 5, 6.2, 6.3, 6.4, 6.5, 7, and 8 shall survive any termination or expiration of this Agreement.
4. Proprietary Rights
4.1. Reservation of Rights. As between Customer and Fugue, Fugue retains all right, title, and interest to all Training Services and Training Materials. Except as reasonably necessary for Customer to use the Training Materials in connection with receipt of the Training Services, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any of Fugue’s intellectual property.
4.2. Feedback. If Customer provides Fugue with any suggestions, ideas, feedback, reports, error identifications or other information related to the Training Services, Fugue’s software, or the Ludwig language (“Feedback”), Customer hereby assigns to Fugue all right, title and interest in and to all such Feedback, and agrees to assist Fugue in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.
To the fullest extent permitted under applicable law, Customers shall indemnify and hold harmless and, at Fugue’s option, defend Fugue, its affiliates, and its personnel, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) Customer’s receipt or use of the Training Services and Training Materials, and (b) any violation or alleged violation of this Agreement by Customer or its personnel.
6. Warranties; Limitation of Liability
6.1. Limited Warranty. Fugue represents and warrants to Customer that the Training Services will be performed in a professional and workmanlike manner.
6.2. Disclaimers. Except as set forth in SECTION 5.1, FUGUE MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE TRAINING SERVICES OR TRAINING MATERIALS PROVIDED HEREUNDER, AND FUGUE HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NEED, ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN ADDITION, Without limiting the foregoing, Fugue does not REPRESENT OR warrant that the Training Services or TRAINING Materials ARE OR will be free from errors. Fugue disclaims any responsibility for any harm resulting from Customer’s receipt or use of the Training Services or TRAINING Materials and Customer agrees that it receives and uses THE Training Services and TRAINING Materials at its own discretion and risk and THAT Customer will be solely responsible for any damages to its information systems or assets or loss of data that results from receipt or use of the Training Services or TRAINING Materials.
6.3. Third Parties. Under no circumstance shall fugue be responsible for (A) any action or omission of a third party partner in connection with customer’s purchase of training services, OR (B) ANY ACTION OR OMISSION OF A THIRD PARTY THAT IS PROVIDING FACILITIES IN WHICH THE TRAINING SERVICES ARE TO BE PROVIDED.
6.4. General Limitation. To the extent permitted by applicable law and notwithstanding anything in this Agreement to the contrary, Fugue’s aggregate liability to Customer for damages arising out of, relating to or in connection with this Agreement, including RELATING TO ANY TRAINING SERVICES OR TRAINING Materials, regardless of the form of action giving rise to such liability (under any theory, whether in contract, tort, statutory or otherwise) shall not exceed the Training Fees paid by Customer to Fugue.
6.5. Limitation on Other Damages. To the extent permitted by applicable law and notwithstanding anything in this Agreement to the contrary, Fugue shall not be liable for any indirect, exemplary, special, consequential or incidental damages of any kind, or for any damages resulting from loss or interruption of business, lost data or lost profits, arising out of, relating to or in connection with this Agreement or the subject matter hereof, however caused, even if Fugue has been advised of or should have known of the possibility of such damages.
7.1. Confidential Information. For purposes of this Agreement, “Confidential Information” means Fugue’s information or materials, whether disclosed orally, in writing or otherwise, provided under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes the Training Materials, terms and conditions of this Agreement, all technical information or data, product ideas, methodologies, algorithms and analytical routines information or materials disclosed or otherwise provided by Fugue to Customer. Customer shall not use Confidential Information for any purpose other than in connection with the Training Services or the use of properly licensed Fugue software and shall not disclose any Confidential Information to any third party. Customer shall protect Confidential Information with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but in any event with no less than reasonable care.
7.2. Equitable Relief. Customer acknowledges that Fugue considers its Confidential Information to contain trade secrets and that any unauthorized use or disclosure of such information may cause Fugue irreparable harm for which remedies at law would be inadequate. Accordingly, Customer acknowledges that Fugue may be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief enjoining any breach of Customer obligations with respect to Confidential Information.
8.1. Force Majeure. Fugue shall be excused from performance under this Agreement and any Statement of Work for any period to the extent that it is reasonably prevented during such period from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.
8.2. Dispute Resolution. All matters arising out of or in connection with this Agreement shall be construed in accordance with and governed by the internal laws of the State of Maryland (but expressly excluding the Uniform Computer Information Transactions Act (“UCITA”) as enacted in Maryland) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Maryland (excluding UCITA) to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the District of Maryland or in state courts with jurisdiction over Frederick County, Maryland, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
8.3. Assignment. Customer may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any Statement of Work, or any of its rights or obligations under this Agreement or any Statement of Work, without Fugue’s prior written consent. Fugue may delegate its obligations under this Agreement or any Statement of Work to its subcontractors and consultants. Any purported assignment, sale, transfer, delegation or other disposition by Customer, except as permitted herein, shall be null and void.
8.4. Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. No terms, conditions or other provisions associated with any purchase order, invoice or similar document issued by Customer (other than a Statement of Work executed by the parties) shall be given any effect unless Fugue expressly agrees to such terms, conditions or other provisions in writing. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
8.5. Electronic Signature and Disclosure Consent Notice. Customer agrees to the use of electronic documents and records in connection with this Agreement and all future documents and records in connection with the Training Services, including this electronic signature and disclosure notice, and that this use satisfies any requirement of Fugue to provide Customer with these documents and their content in writing. If Customer does not agree to the foregoing, do not enter into this Agreement. Customer has the right to receive a paper copy of all documents and records. To receive or access electronic documents and records, Customer must have the following equipment and software: (a) a device that is capable of accessing the Internet; (ii) a compatible Internet browser; and (iii) software that permits Customer to receive and access Portable Document Format or "PDF" files.
8.6. Miscellaneous. This Agreement and any Statement of Work are the complete and exclusive agreements between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. If the terms of this Agreement conflict with a Statement of Work, the terms of this Agreement will prevail, unless the Statement of Work expressly provides that such conflicting terms in the Statement of Work supersede conflicting terms in this Agreement. If the terms of this Agreement conflict with the terms of a Subscription Agreement, the terms of the Subscription Agreement will prevail. If the terms of an agreement with a Third Party Partner conflict with this Agreement or a Statement of Work, as between Fugue and Customer the terms of this Agreement and the Statement of Work will prevail. If any provision of this Agreement or any Statement of Work is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof and thereof shall be unaffected and remain in full force and effect. No amendment or modification to this Agreement or any Statement of Work shall be valid or binding upon the parties unless in writing and signed by an officer of each party. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.