These Terms and Conditions (“Terms and Conditions”) are made a part of and incorporated by reference into the Gyrus Systems Subscription Agreement by and between Client and Gyrus Systems (“Gyrus”) (the “Agreement”).
a) “Affiliate” means a party that partially (at least 50%) or fully controls, is partially or fully controlled by, or is under partial (at least 50%) or full common control with, another party.
b) “Agreement” means the Order and these Terms and Conditions.
c) “Client Content” means each and all of the following which is provided by Client: course, learning object, certification, assessment, evaluation, resources, instructor-led session, or document.
d) “Client Data” means proprietary or personal data regarding Client or any of its users under the agreement.
e) "Confidential Information" means any non-public information of Gyrus or Client disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
f) “Free Trial” means a period, lasting the length of time and for the number of Subscribers specified during sign-up, whereby Gyrus has allowed Client to use the Software on a provisional basis without payment for such use therefor.
g) “Implementation” means implementation, deployment, and/or training relating to the Software.
h) “Intellectual Property Right” means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.
i) “Order” means a Product purchase in a schedule, statement of work, order, addendum, or amendment signed by both parties (or an online purchase authorized by Client).
j) “Service” means any service rendered by Gyrus specifically to Client, including, but not limited to: (i) hosting of the Software; (ii) Implementation; (iii) development of Software functionality specially requested by Client; and/or (iv) any consulting service.
k) “Software” means any and all of Gyrus’s proprietary software offerings, including, without limitation, all updates, revisions, bug-fixes, upgrades, and enhancements thereto, as well as software that has been modified in any way by Gyrus at the request of a client.
l) “Subscriber” means an employee, member, or customer of Client or one of its Affiliates who is permitted by Client to access the Software.
m) “Subscription” means a subscription purchased by Client for a Subscriber to access the Software.
n) “Term” means the Initial Term plus all Renewal Terms.
In order to use the Services, the Customer must obtain a valid Gyrus account, which can be obtained by registering on the website https://www.gyrus.com by filling in the registration form and providing all the required information, including a valid e-mail address ("Registration Data "). The customer can then choose an account name for their web space (eg. myname.gyrusaim.com) that is not already in use by another user.
Users are responsible for maintaining the confidentiality of account login information (username/password) and are fully responsible for all activities performed on their account.
The user agrees to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form to the Services, and (b) maintain and promptly update the Registration Data to keep the information true, accurate, current and complete, (c) immediately inform Gyrus of any unauthorized use of your account or any other breach of security, and (d) exit from your account at the end of each work session.
Gyrus undertakes no obligation to verify the data provided by the Customer. However, if Gyrus FINDS or even just suspects that the above information is untrue, inaccurate, not current or incomplete, Gyrus may suspend or terminate your account and refuse any and all current or future use of the Services (or any part of them).
Gyrus cannot and will not be liable for any loss or damage arising from your failure to comply with this section
To allow the customer to evaluate the services offered by GYRUS, this will allow for some or all of its products to activate a free trial account (Trial) only once and for a limited period of time (specified on the website https://www.gyrus.com or any affiliate pages), during which the customer can:
* Import and manage users without any limitations (up to 50 active users)
* Import existing contents owned by the client
* Setup, assign and track various training types
* Submit requests to sales support team with any questions
In the event of activation of multiple versions of the same Trial by customer or user (individual or organization), Gyrus reserves the right to terminate your access to all activations after the first and erase all the data recorded therein. Gyrus reserves, on a case by case basis and at its sole discretion, may extend the trial period the user.
If by the end of the trial period, if the customer does not purchase a product or any Gyrus products, all data, information, and content uploaded by the Customer in GyrusAimTM Learning Cloud and any configuration made during installation GyrusAimTM Learning Cloud, will be canceled and will be permanently lost within 90 days.
Gyrus recommends that users who are using the trial version to make use of the tools of online manuals and documentation made available prior to making the purchase of the platform.
Regardless of, or when, at the end or after the trial period, users can purchase one of the plans offered by Gyrus for the product GyrusAimTM Learning Cloud. Buying a user plan involves the conversion of the platform into the free version into a platform with a fee. The plans to buy are based on the concept of the maximum number of active users for each plan during the contract period, either monthly or yearly. The characteristics of the various user levels are available on the website https://www.gyrus.com/ to go within the platform itself, the menu dedicated to the acquisition of paid plans.
Payment may be made by credit card, for a monthly or annual plan in effect, or wire transfer and/or Purchase Order, exclusively for the effective annual or multi-year plans.
The request for payment by bank transfer requires the emission of an order by a Gyrus charge to the Customer and the Customer's acceptance of the same order form. The payment terms are the total annual cost at the time of order.
The Contract shall be renewed from time to time for a period of equal duration (30 days or 365 days), with payment of the relevant amount in the same manner as defined in the activation.
TAXES. Unless otherwise stated in writing, Gyrus’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively referred to as "Taxes"). You shall be responsible for paying all Taxes associated with your purchases hereunder. If Gyrus has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you.
In the event of non-payment or late payment, Gyrus may deactivate your account immediately, in whole and/or in part, without notice, any outstanding payments relating to the Services or late. In particular, if we consider late or missed payments
* via credit card, in case of failure to complete the payment process or if the transaction is suspended or dismissed,
* by bank transfer, the amount not credited to the account of Gyrus
The continuation of unsolved for more than 15 days after its due date will result in the termination of the contract and the relative deactivation of services.
In the case of multiple contracts with the same customer, where the unresolved concerns, one or more of these reports will be entitled to suspend or terminate Gyrus infringement also all other possible supply contracts other than the object unsolved, disabling services purchased and / or delivering work already undertaken, and holding outright any amounts already received by way of damages, unless in any case the claim for further damages.
Customers can deactivate the auto-renewal of the contract and the related payment plan active on their platform at any time. The management of the auto-renewal is exclusively managed by an automated GyrusAimTM Learning Cloud platform and is the sole responsibility of the customer, which will be solely responsible for the activation and/or deactivation of that option.
In particular, the deactivation of the automatic renewal is done by logging in as the user having administrative rights within the GyrusAimTM Learning Cloud billing and choosing the corresponding function that allows you to terminate the active payment plan. The eventual cancelation decided by the customer and executed through the platform Gyrus is immediately processed automatically by the system.
In case of a contract made with payment by credit card, the deactivation becomes effective with the expiration of the period of the validity of the contract, the period during which the customer will have the right of access to Gyrus SaaS.
Bank transfer or other, the cancellation must be received by Gyrus with a notice not less than 60 days from the expiry of the contract. Otherwise the same will be automatically renewed for the following year.
Mismanagement of the option of automatic renewal by the Client excludes the right to reimbursement of the charges made by Gyrus.
Bankruptcy Events. A party may immediately terminate the agreement if the other party: (i) has a receiver appointed over it or over any part of its undertakings or assets; (ii) passes a resolution for winding up (other than for a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect and such order is not discharged or stayed within ninety (90) days; or (iii) makes a general assignment for the benefit of its creditors.
Please refer to the Gyrus Support Policy and Gyrus Service Level Agreement, which can be found at Support SLA. In no event shall Gyrus be responsible or liable for any errors, bugs or other problems contained in or originating from hardware or software not provided by Gyrus.
In accordance with the terms and conditions of the agreement, Gyrus will: (i) make the Software and Services available on a non-exclusive basis to Client and Subscribers via the Internet; (ii) maintain appropriate safeguards for protection of Client Data, including regular back-ups and security protocols; (iii) not access, modify, or disclose Client Data (except as compelled by law, to prevent or address service or technical issues, or if otherwise permitted by Client). Gyrus shall process Client Data in accordance with Client’s instructions consistent with and in the scope of the agreement. Client authorizes Gyrus to transfer Client Data to Gyrus Affiliates and/or subcontractors in the United States, India, and/or other locations reasonably required to provide support, perform technical projects or perform other types of services under the agreement.
The client may only use the Software and Services for its own lawful, internal business purposes. Client shall not: (i) use or deploy the Software in violation of applicable laws or these Terms and Conditions; (ii) resell the Software or Services; create any derivative works based upon the Software or Services; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the Software or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv) make the Software or Services available to any unauthorized parties, including without limitation, competitors of Gyrus; or (v) perform, or release the results of, benchmark tests or other comparisons of the Software or Services with other software, services, or materials. The client will be responsible for Subscribers’ compliance with the agreement and liable for Subscribers’ breach thereof. The client will ensure that it has obtained all necessary consents and approvals for Gyrus to access and use Client Data for the purposes permitted under this agreement and that the provision of Client Data to Gyrus hereunder does not violate or infringe any Intellectual Property Right of any third party. If Client is in breach of this section, Gyrus may suspend Services, in addition to any other rights and remedies Gyrus may have at law or in equity.
As between the parties, Gyrus will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Software and Services. Client retains all ownership rights to Client Data.
Each of the parties agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of Gyrus providing Services hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in these Terms and Conditions; (ii) not to use any Confidential Information for any purposes except carrying out such party’s rights and responsibilities under the agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of the agreement. If a party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.
a) Gyrus’s Indemnification Obligations. Gyrus agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) incurred or suffered by Client which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by Client’s authorized use of the Software. The foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with: (i) Client Data; or (ii) unauthorized or negligent use and/or alteration of the Software.
b) Indemnification by Client. Client agrees to indemnify, defend, and hold harmless Gyrus from and against any and all damages incurred or suffered by Gyrus which directly relate to or directly arising out of (i) Client Data or Client Content; (ii) Client’s breach of the agreement; (iii) Client’s breach of any representation or warranty; (iv) Client’s non-compliance with any applicable law; or (v) Client’s non-payment hereunder. The foregoing provisions of section 9(b)(i) shall not be applicable to the extent the damages relate to or arise from Gyrus’s use of Client Data or Client Content in violation of the agreement.
c) Indemnification Procedures. To obtain indemnification, indemnitee shall: (i) give written notice of any claim promptly to indemnitor; (ii) give indemnitor, at indemnitor’s option, sole control of the defense and settlement of such claim, provided that indemnitor may not, without the prior consent of indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases indemnitee of all liability; (iii) provide to indemnitor all available information and assistance; and (iv) not take any action that might compromise or settle such claim.
d) Exclusive Remedies. The remedies set forth in this section shall be exclusive with respect to any infringement claim hereunder.
Each party represents and warrants to the other party that, as of the date hereof: (i) it has full power and authority to execute and deliver the agreement; (ii) the agreement has been duly authorized and executed by an appropriate employee of such party; (iii) the agreement is a legally valid and binding obligation of such party; and (iv) its execution, delivery and/or performance of the agreement does not conflict with any agreement, understanding or document to which it is a party. GYRUS WARRANTS THAT ANY AND ALL SERVICES PROVIDED BY IT HEREUNDER SHALL BE PERFORMED IN A PROFESSIONAL MANNER CONSISTENT WITH PREVAILING INDUSTRY STANDARDS, AND THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN MATERIAL ACCORDANCE WITH THE AGREEMENT AND APPLICABLE DOCUMENTATION PROVIDED BY GYRUS. CLIENT’S EXCLUSIVE REMEDY FOR ANY BREACH OF THESE WARRANTIES SHALL BE TO TERMINATE THE AGREEMENT FOR CAUSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GYRUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (EXCEPT FOR THE INFRINGEMENT INDEMNIFICATION PROVIDED HEREUNDER) AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT UNDERSTANDS THAT THE SOFTWARE IS SOFTWARE-AS-A-SERVICE. ACCORDINGLY, SOFTWARE ENHANCEMENTS MAY BE MADE BY GYRUS ON A PERIODIC BASIS, AND CLIENT WILL ONLY HAVE ACCESS TO THE MOST RECENT VERSION OF THE SOFTWARE MADE AVAILABLE TO CLIENT.
GYRUS’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO GYRUS HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES AGREED UPON BETWEEN CLIENT AND GYRUS ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. GYRUS WILL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, INTERRUPTION OF BUSINESS, PROVIDING REPLACEMENT SOFTWARE (EXCEPT AS SET FORTH IN SECTION “RIGHT TO PROCURE OR SUBSTITUTE”), OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
a) Governing Law; Jurisdiction. The agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia and the federal laws of the United States of America, without regard to conflict of law principles, and the state and federal courts of the Commonwealth of Virginia located in the County of Henrico shall have exclusive jurisdiction in any proceedings relating to it.
b) Force Majeure. Neither party will be liable for any failure or delay in its performance under the agreement due to any cause beyond its reasonable control, including without limitation, acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
c) Counterparts; Facsimile. Orders may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
d) Entire Agreement. These Terms and Conditions, together with the Order and any attachments, contain the entire understanding of the parties in respect of the agreement’s subject matter and supersede all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. Any schedules and exhibits to the agreement constitute a part thereof as though set forth in full therein. Purchase orders submitted by Client are for Client’s internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force and effect.
e) Modifications. Gyrus may modify these Terms and Conditions at any time, and such modification shall be effective thirty (30) days from the posting by Gyrus of the updated terms at the above URL. Client’s continued use of the Software following any amendment of these Terms and Conditions will signify Client’s assent to and acceptance of the revised terms. Any modification, amendment or addendum to an Order must be in writing and signed by both parties and when Gyrus has enabled online purchasing via the Gyrus website or Client’s tenant, via online consent and acceptance.
f) Assignment. Client may not assign the agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without Gyrus’s prior written consent; provided, however, Client, without Gyrus’s consent, may assign the agreement to an Affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such party, where the responsibilities or obligations of Gyrus are not increased by such assignment and the rights and remedies available to the Gyrus are not adversely affected by such assignment. Subject to that restriction, the agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.
g) No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
h) Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in these Terms and Conditions, Gyrus owns the aggregated, anonymized, and statistical data (“Aggregated Data”) derived from the operation of the Software, and nothing herein shall be construed as prohibiting Gyrus from utilizing the Aggregated Data for business and/or operating purposes, provided that Gyrus does not share with any third party Aggregated Data which reveals the identity of Client, Client’s users, or Client’s Confidential Information.
i) Third-Party Applications.
i) External Applications. The Software may contain features capable of interoperating with third-party applications not offered by Gyrus (“External Applications”). To use such features, Client may be required to obtain access to such applications from a third-party provider. Gyrus shall not be responsible for Client’s access to, or operation of, External Applications.
j) Minimum Technical Requirements for Software Use. Client understands that, in order to use the Software, a Subscriber must utilize a web browser (preferably Gyrus’s qualified browser, which can be found at Supported Browsers).
k) Severability. If any provision of the agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of the agreement shall remain in full force and effect.
l) Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed. Notices to Gyrus shall be delivered to Gyrus Systems, 5400 Glenside Drive – Suite B, Henrico, Virginia 23228, attention: General Counsel.
m) Independent Contractors. Client and Gyrus are independent contractors, and nothing in the agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Client and Gyrus. Each party understands that they do not have the authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
n) Headings and Capitalized Terms. The headings of the sections of these Terms and Conditions are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe their meaning, scope or intent. Capitalized terms used, but not otherwise defined, herein shall have the same meanings assigned to those terms in the agreement.
o) Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under the agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
p) Survival. Sections of the agreement intended by their nature and content to survive termination of the agreement shall so survive.
Gyrus is committed to an administrative, physical and technical safeguards to ensure the security, confidentiality, and integrity of Customer Data, and not change them unless specifically requested in writing by the customer. Gyrus also is committed to you and to the extent possible, to not access the Customer Data, except to the extent required for the proper delivery of services purchased, including actions to prevent technical problems (on request, for example, concomitantly with issues related to technical support).
Last updated: May 30, 2018