This END USER SERVICES AGREEMENT (“Agreement”) constitutes a legal agreement between The Escal Institute of Advanced Technologies, Inc. /dba SANS Institute, for itself and on behalf of its subsidiaries (collectively "SANS") and you (“You”, “Your”, or “Customer”) for Your purchase of SANS provided Products and Services. SANS and You may be referred to in this Agreement individually as a "Party" and together as the "Parties”. By providing payment, whether directly or indirectly, to SANS, or using the Products or Services, You agree to be bound by the terms of this Agreement. If You do not agree to this Agreement, SANS shall not sell Products or Services to You, and You must discontinue the purchasing process now.
1. DEFINITIONS
1.1. Applicable Data Protection Legislation means any data protection regulation that may apply in the context of the Agreement, including, where applicable, (i) the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (“GDPR”) and the laws and regulations adopted to implement the GDPR, (ii) the U.K. General Data Protection Act, and (iii) the California Consumer Privacy Act.
1.2. Confidential Information means any information that is proprietary or confidential to a Party and either marked as confidential or identified as such to the other Party, including, but not limited to, business or technical data or know-how, customer and prospective customer lists, secrets, ideas, concepts, designs, drawings, flow charts, diagrams, financials, and other intellectual property, in whatever form including, documented information, machine readable or interpreted information transmitted in any form including, in writing, orally, or visually. Any abstracts, summaries or compilations are included in this definition of Confidential Information. For avoidance of doubt, Confidential Information includes details of SANS training courses or exams, pricing, courseware, user information, and the business relationship between the Parties.
1.3. COTS means Commercial Off The Shelf and is used in reference to the SANS-provided Training and associated Courseware.
1.4. Course Materials means SANS' educational materials including, but not limited to, online, written, and visual materials.
1.5. Courseware means SANS' Course Materials and verbal instruction.
1.6. Customer Investment Total means the training investment that is paid by Customer, directly or indirectly, received by SANS and deposited into a Voucher Account held by SANS and dedicated to Customer.
1.7. Disclosing Party means the Party that discloses its Confidential Information to the Receiving Party under this Agreement.
1.8. GIAC means Global Information Assurance Certification.
1.9. Personal Data means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
1.10. Products means the products to be provided by SANS to Customer.
1.11. Receiving Party means the Party that receives Confidential Information of the Disclosing Party under this Agreement.
1.12. SANS IP means any and all domestic and international rights in and to (i) registered or unregistered trademarks, service marks, social media handles and associated accounts, hashtags, internet domain names, together with the goodwill associated therewith, (ii) patents, patent disclosures, patentable subject matter, inventions, any improvements or modifications thereof or know-how; (iii) registered or unregistered copyright, copyrightable works, derivative works thereof, including any copyrights moral rights, and other sui generis rights in and to any of the foregoing; (iv) trade secrets including without limitation any customers, market strategy, sales initiatives and costs; (v) to the extent permitted by applicable law, other proprietary intellectual property (of every kind and nature and however designated), whether arising by operation of law, contract, license or otherwise, worldwide (including moral rights); and (vi) all registrations, applications, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing now or hereafter in force or hereafter acquired or adopted. For the avoidance of doubt, “SANS IP” includes the Training and associated course materials, storyboards, scripts, educational material in any format, and GIAC test exam questions.
1.13. Services means the services to be performed by SANS for Customer as described herein.
1.14. Specifications means any characteristics, features, descriptions, criteria, scope, capabilities, standards, and/or requirements for the Services as described herein and/or in an applicable SOW.
1.15. Statement of Work or SOW means a mutually agreed statement of Services to be performed by SANS for Customer.
1.16. Training means the SANS provided cybersecurity training, GIAC exams or other Products and Services provided in accordance with this Agreement.
1.17. User means an individual person who Customer has named and who will access or attend Training.
1.18. Voucher Account means the SANS account where the Voucher Funds are held and where Customer can manage its budget for individual Users to receive Training or other Products and Services from SANS.
1.19. Voucher Funds means the total funds available to Customer to include Customer Investment Total and any other funds deposited into a Voucher Account.
2. SANS RESPONSIBILITIES
2.1. Services. SANS will provide, perform, and/or deliver all Training and/or other Products and Services to Customer in accordance with Specifications. In the event of a conflict between the terms of this Agreement and other applicable addendums, or exhibits, the terms of this Agreement shall govern.
2.2. Compliance with Laws. In connection with its obligations under this Agreement, SANS agrees to comply with all federal, state, and local laws, constitutions, codes, statutes and ordinances of any governmental authority that may be applicable to SANS, its activities under this Agreement, including all applicable sanctions and export control laws and regulations.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. Customer acknowledges that SANS or its licensors are the sole and exclusive owners or licensees of the SANS IP, including any improvements and enhancements thereto and derivations thereof. Nothing in this Agreement transfers any ownership interests in the SANS IP to Customer. In addition, nothing in this Agreement grants Customer any right to license or sell any SANS IP to any third parties.
4. COURESEWARE AND COURSE MATERIALS
4.1. Customer may not distribute Courseware to Customer’s employees who did not attend Training and may not use the Courseware to conduct its own in-house courses. SANS Training cannot be recorded, streamed, or set up for video conferencing by Customer or its Users except as set forth in Specifications agreed to by SANS.
4.2. SANS grants to each individual User enrolled in Training a worldwide, non-transferable, non-sublicensable, perpetual, irrevocable, non-exclusive, limited license directly to use such Courseware associated with such Training in connection with the User’s employment by Customer. Neither Customer nor its Users may copy, reproduce, distribute, display, modify or create derivative works based upon all or any portion of the Courseware in any medium, whether printed, electronic, or otherwise, for any purpose, including, but not limited to, for purposes of teaching any computer or electronic security courses to any third party, without the express written consent of SANS.
4.3. Course Materials are guaranteed to be in good working condition for the duration of the User's attendance in the Training for which the User is registered; provided, SANS is not responsible for any loss, damage, or performance limitation caused in whole or in part by User abuse, mishandling, misuse, negligence, improper storage, servicing or operation, or unauthorized attempts to repair or alter the Course Materials in any way.
4.4. For the avoidance of doubt, following termination, Users shall be permitted to keep any Course Materials licensed to them by their attendance at a SANS Training or GIAC exam.
5. CONDUCT
5.1. Customer’s personnel are expected to behave professionally. The use of obscene or sexually harassing language, and abusive or threatening behavior directed at SANS personnel or other students is not conducive to a learning environment. Improper conduct can result in expulsion from Training.
6. VOUCHER FUNDS
6.1. SANS’ Voucher Account Program is a program that allows You, upon SANS’ receipt of the Customer Investment Total, to manage its Voucher Account to purchase Products and Services from SANS. Voucher Funds in the Voucher Account have cash value and can be used by You to register Users for Training or other Products and Services.
6.2. Voucher Funds are non-transferable and shall remain with SANS until depletion or expiration of such Voucher Funds.
7. UTILIZATION OF VOUCHER ACCOUNT
7.1. All SANS Training procured through the Voucher Account will be based on SANS’ published retail prices at the time of registration and cannot be combined with other discounts or promotional offers other than as provided for within this Agreement.
7.2. Voucher Funds are valid for 12 months and non-refundable. If Voucher Funds remain in the Voucher Account nearing the conclusion of the initial 12- month period, Customer may contribute an additional investment, prior to expiration, to renew the Voucher Account. The existing Voucher Funds rollover (renew) with the new funds for another 12 months.
7.3. Descriptions of the available courses are available at https://www.sans.org.
7.4. The Voucher Account and Voucher Funds therein may be used for Customer and Customer personnel only. Customer agrees and understands that any sale of Customer’s Voucher Funds, or use of Voucher Funds, by third parties is a breach of this Agreement and will result in irreparable harm to SANS for which SANS is entitled to relief.
8. VOUCHER ADMINISTRATION TOOL
8.1. Customer shall appoint a staff member to serve as Customer’s Voucher Account administrator (the “Administrator”) for each Voucher Account, and such Administrator will be given access to the online SANS Voucher Administration Tool.
8.2. The SANS Voucher Administration Tool allows the Administrator to: (i) approve/deny User enrollment; (ii) view Voucher Fund usage in real time; (iii) control how and where Voucher Funds are utilized; (iv) view Users’ certification status and GIAC exam results; and (v) obtain OnDemand course progress by User per course to determine whether the User is on schedule to complete the course prior to the course expiration. Customer agrees and understands that Voucher Funds may only be utilized for Customer’s employees and that it is the Customer’s responsibility to ensure Voucher Funds are not used by any non-Customer personnel.
9. CANCELLATION POLICY
9.1. Transfers. A User may request to transfer to other COTS Training at any time prior to the start of the originally registered event, or where applicable, prior to accessing the online Course Materials, by submitting a transfer request, via e-mail, along with Administrator approval, to vouchersupport@sans.org. The difference in tuition fees, if applicable, and processing fees will apply.
9.2. Refunds. If a User cannot substitute their registration or transfer to other COTS training, the registered User may submit a refund request via e-mail, along with Administrator approval, to vouchersupport@sans.org. If the refund request is submitted by the refund deadline date specific to the event, payments received will be refunded, less a processing fee, in the same manner they were paid. To find the specific deadline dates for a COTS training event, please visit the training event link on the SANS webpage, www.sans.org, and navigate to the cancellations link. No refunds will be given after the stated deadline. If a User has already accessed online Course Material, no refund or substitution will be made.
9.3. Global Information Assurance Certification Exams. GIAC exams are non-transferable and non-refundable after the User receives access to the exam material.
10. TERM AND TERMINATION
10.1. This Agreement is effective from the earlier date you purchase or use the Products or Services, until terminated according to these terms (the “Term”).
10.2. Termination. Either Party may terminate this Agreement as follows:
10.2.1. Upon thirty (30) days’ written notice in the event that the other Party materially breaches, for the first time, any provision of this Agreement (a “Default” by the “Defaulting Party”), provided that the Defaulting Party’s breach, if curable, has not been cured within the thirty (30) day notice period;
10.2.2. Upon thirty (30) days’ written notice in the event that the Defaulting Party engages in multiple or persistent breaches of this Agreement (including but not limited to repeated non-payment) (an “Incurable Default”). In the event of an Incurable Default, the Agreement shall terminate regardless of any attempts by the Defaulting Party to cure.
10.2.3. Immediately if (a) the other Party ceases to carry on its business; (b) a receiver or similar officer is appointed for the other Party and is not discharged within thirty (30) days; (c) the other Party becomes insolvent, admits in writing its inability to pay debts as they mature, is adjudicated bankrupt, or makes an assignment for the benefit or its creditors or another arrangement of similar import; (d) proceedings under bankruptcy or insolvency laws are commenced by or against the other Party and are not dismissed within thirty (30) days; or (e) a Party is in default of Section 12.
10.3. Survivability. Sections 3 (Intellectual Property Rights), 10 (Term and Termination), 11 (Confidentiality), 12 (Privacy), 13 (Data Protection), 15 (Indemnification), 16 (Intellectual Property Indemnification), 17 (Disclaimer Of Warranty and Limitation Of Liability), and 21 (Governing Law, Disputes) will survive the termination of this Agreement.
11. CONFIDENTIALITY
11.1. The Receiving Party may be given Confidential Information from the Disclosing Party in order to perform its obligations under this Agreement. The Receiving Party will protect the confidentiality of the Disclosing Party’s Confidential Information during the Term of this Agreement and indefinitely thereafter by (a) using the same means it uses to protect its own Confidential Information, but in any event, not less than reasonable means, and (b) using the Disclosing Party’s Confidential Information solely in connection with this Agreement. The Receiving Party shall not copy or disclose this Agreement and the Disclosing Party’s Confidential Information except to those employees, officers, directors, subcontractors, agents, or affiliated entities of the Receiving Party (“Representatives”) who have a need to know such Confidential Information as required in connection with this Agreement; provided, such Representatives are advised of and agree to abide by the confidentiality obligations set forth in this Agreement. Compliance by Representatives with the confidentiality and use obligations in this Agreement will remain the responsibility of Receiving Party, and both Receiving Party and Representatives shall be liable for any breach of this Agreement by Representatives.
11.2. Confidential Information will not include any information or data which:
11.2.1. was rightfully in the Receiving Party or its Representatives’ possession prior to receipt from the Disclosing Party;
11.2.2. becomes rightfully available to the Receiving Party or its Representatives from a source other than the Disclosing Party who is free to lawfully disclose such information to the Receiving Party;
11.2.3. is independently developed by the Receiving Party or its Representatives, without the use of the Disclosing Party's Confidential Information; or
11.2.4. is legally required to be disclosed to a regulatory agency or pursuant to an order of a court of competent jurisdiction, provided that, where permissible, the Disclosing Party be given an opportunity to seek a protective order.
12. PRIVACY
12.1. In accordance with SANS’ Privacy Policy, all information collected from a User related to Training taken from SANS will be kept confidential except as may be disclosed (i) as permitted by applicable law, (ii) as consented to by the User, or (iii) to Customer as the sponsor of User’s training at SANS. Please see SANS’s Privacy Policy for additional information (https://www.sans.org/privacy/).
13. DATA PROTECTION
13.1. Each Party undertakes to comply on their own with Applicable Data Protection Legislation, exercising individual's rights, conducting impact assessments, taking commercially reasonable efforts to prevent and manage data breaches appropriately, maintaining confidentiality, limiting the processing to the Products or Services delivered under this Agreement, maintaining the ability to demonstrate compliance with Applicable Data Protection Legislation, implementing appropriate data retention procedures and adhering to data transfer requirements, and maintaining industry-standard administrative, physical and technical safeguards to protect the security, confidentiality and integrity of such Personal Data.
13.2. In the event that either Party needs to provide any Personal Data under any Applicable Data Protection Law to the other Party to perform a Party’s obligations under this Agreement, then the Parties acknowledge and agree that they are each acting as separate and Independent Controllers of such Personal Data shared. A Party shall not share any Personal Data with the other Party unless such Party confirms that it is legally permitted to share such Personal Data.
13.3. To the extent that Personal Data is provided from a Party to the other Party and such disclosure requires a data processing agreement between the Parties under an applicable data protection law, the Parties agree that the SANS DPA is incorporated into and attached to this Agreement by reference.
14. INDEMNIFICATION
14.1. Each Party (an “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other Party, its affiliated entities, and its and their officers, directors, employees, and agents (each an “Indemnified Party”) harmless from and against any action, claim, suit, investigation or other proceeding (each, a “Claim”) brought against an Indemnified Party by a third party based on: (a) breach of any applicable law by such Indemnifying Party or (b) gross negligence or willful misconduct by such Indemnifying Party.
15. INTELLECTUAL PROPERTY INDEMNIFICATION
15.1. Subject to the limitations of liability in Section 17 (Disclaimer of Warranty and Limitation of Liability) of the Agreement, SANS shall defend, indemnify, and hold Customer and its officers, directors, employees, and agents (each a “Customer Indemnitee”) harmless from and against any third party claims, demands, suits, proceedings, and resulting liabilities, direct damages, and expenses (collectively “Claims”), to the extent that SANS IP infringe any patent, copyright, trademark, trade secret or other intellectual property interest of a third party. SANS shall, in its sole discretion and at no additional charge to Customer, make commercially reasonable efforts to replace, in whole or in part, the infringing materials or Services with substantially compatible and functionally equivalent materials or Services, modify them to avoid the infringement, or secure the right for Customer to continue their use. In the event that SANS determines that the foregoing actions are not commercially practicable, then either Party may terminate the applicable Training and SANS shall refund to the Customer the applicable fees for periods after the effective date of termination.
15.2. The foregoing obligations are conditioned on (i) the Customer Indemnitee providing prompt notification of the Claim to SANS, (ii) Customer allowing SANS to control the defense and settlement of the Claim (except that SANS may not agree to any settlement or consent to any judgment that would admit fault, wrongdoing or liability on the part of the Customer without such Customer’s prior written consent), and (iii) the Customer’s cooperation with the SANS as reasonably requested by SANS (at SANS’ expense) in the defense and any related settlement of the Claim.
16. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
16.1. Except as specifically provided herein, SANS disclaims any and all representations and warranties, oral or written, expressed, implied, or statutory, including without limitation, any implied warranties of fitness for a particular purpose or of merchantability. In no event shall SANS be liable for any incidental, indirect, consequential, exemplary, special, or punitive damages, whether or not foreseeable, and regardless of whether liability is based on agreement, tort, or otherwise.
16.2. EXCEPT IN THE EVENT OF BREACH OF SECTION 3 (INTELLECTUAL PROPERTY RIGHTS), IN NO EVENT SHALL EITHER PARTY, ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, LIABILITY IN ANY MANNER ARISING UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL PAYMENT RECEIVED BY SANS FOR PRODUCTS OR SERVICES UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN CAUSE OF ACTION ARISES, INCLUDING ATTORNEY FEES.
17. INSURANCE
17.1. Each party will maintain the types of insurance customary and appropriate for such agreements, in the amount necessary to cover its obligations and responsibilities under this agreement or required by law.
18. ACCOMMODATION REQUESTS.
18.1. In accordance with the workplace reasonable accommodations guidelines of applicable disability laws (the “Acts”) a reasonable accommodation is any reasonable change or adjustment to a job or work environment that permits a person with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by staff participants without disabilities.
18.2. The reasonable accommodation process, following the guidelines established by the Acts, is a collaborative and interactive process between the Customer’s employee, Customer’s human resources department, Customer employee’s manager/department head, and/or other subject matter experts and SANS. While SANS considers a Customer employee’s preference when assessing requests for necessary reasonable accommodations, at times SANS may offer an alternative accommodation, so long as the alternative is effective.
18.3. SANS requests that accommodations requests be submitted by a Customer employee via their human resources representative a minimum of six (6) weeks before the start of Training. Any requests submitted after that time frame will be attempted to be met but are not guaranteed.
19. COMPLIANCE WITH LAWS
19.1. Each Party will, at its sole expense, obtain all permits and licenses, pay all fees, and comply with all federal, state, and local laws, ordinances, rules, regulations, codes, and orders applicable to it in the performance of this Agreement.
19.2. Each Party shall conduct operations in compliance with applicable laws, rules and regulations in exercising rights and obligations under any part of this Agreement. Laws may include but not be limited to the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and local anticorruption legislation that may apply. Neither party is listed by any government agency as debarred, suspended, proposed for suspension or debarment or otherwise determined to be ineligible for government procurement programs. In exercising rights and obligations under any part of this Agreement, neither party nor anyone acting on its behalf shall make, offer, promise or authorize payment of anything of value directly or indirectly to any of the following prohibited parties for the purpose of unlawfully influencing their acts or decisions: a) employees, consultants, or representatives of the other Party, b) government officials or employees, c) political party officials or candidates, d) officers or employees of any public international organization, e) immediate family member of such persons (or any other person) for the benefit of such persons.
19.3. Each Party warrants that neither it nor its controlling owners is listed on any (i) sanction programs list maintained by the U.S. Office of Foreign Assets Control within the U.S. Treasury Department (“OFAC”), or (ii) denied party list maintained by the U.S. Bureau of Industry and Security within the U.S. Department of Commerce (“BIS”). Customer agrees it shall not allow Users access to any SANS product, service, or technology provided under this Agreement to any person or entity in a U.S. embargoed country or in violation of a U.S. export control law or regulations. Customer agrees to cooperate with SANS as necessary for SANS to comply with export requirements and recordkeeping required by OFAC, BIS, or other governmental agency.
20. GOVERNING LAW; DISPUTES
20.1. This Agreement will be governed by and construed in accordance with the laws of the State of Maryland, USA. Each Party hereby irrevocably consents to exclusive personal jurisdiction and venue in the state and federal courts located in Maryland. Both Parties exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. The Parties agree to settle all disputes promptly by negotiation between executives in good faith. Should good faith negotiations fail, any controversy or claim arising out of or relating to this Agreement, or breach thereof, will be exclusively settled by binding arbitration in Montgomery County, Maryland, USA administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Either Party may initiate arbitration by written notice if negotiations have failed to resolve the matter within 30 days of initiation. The language of the arbitration will be English.
21. NOTICES
21.1. All notices or reports required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile transmission, a nationally recognized overnight delivery service, by certified or registered mail, return receipt requested, or by electronic mail to be confirmed in writing delivered by one of the methods described herein, and shall be deemed given upon personal delivery, electronic confirmation of electronic mail or facsimile transmission, or signature evidencing receipt of overnight delivery or registered mail, as applicable.
22. MISCELLANEOUS
22.1. Waiver. The failure of either Party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision or a waiver of the right of such Party to thereafter enforce each and every provision of this Agreement.
22.2. Severability. If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, that provision of the Agreement will be enforced to the maximum extent legally permissible and the remainder of this Agreement will continue in full force and effect.
22.3. Headings. The headings or titles preceding the text of the sections and subsections of this Agreement are inserted solely for convenience of reference, and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement.
22.4. Independent Contractor. SANS is an independent contractor and not an employee, agent, affiliate, partner or joint venturer with or of Customer.
22.5. Force Majeure. Neither Party shall be liable to the extent that its performance of this Agreement is prevented, or rendered so difficult or expensive as to be commercially impracticable, by reason of an Act of God, labor dispute, unavailability of transportation, goods or services, governmental restrictions or actions, war (declared or undeclared) or other hostilities, pandemic, or by any other event, condition or cause which is not foreseeable on the Effective Date and is beyond the reasonable control of the Party, provided that such Party promptly informs the other Party of such event, and makes diligent efforts to work around the event and resume performance. In the event of non-performance or delay in performance attributable to any such causes, the period allowed for performance of the applicable obligation under this Agreement will be extended for a period equal to the period of the delay.
22.6. Entire Agreement. This Agreement and all appendices attached hereto (which are specifically incorporated herein by this reference) contain the full and entire agreement between the Parties. It supersedes all prior negotiations, and proposals, written or otherwise, relating to its subject matter. Any modifications, revisions or amendments to this Agreement must be set forth in writing signed by authorized representatives of both Parties.