SMARTFORCE SERVICE SUBSCRIPTION AGREEMENT
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY.
LAST UPDATED: March 16, 2026.
THE SMARTFORCE SERVICE (AS DEFINED BELOW) IS PROVIDED TO SUBSCRIBER BY SMARTFORCE TECHNOLOGIES, INC. (“SMARTFORCE”) SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICE SUBSCRIPTION AGREEMENT (“AGREEMENT”). BY USING THE SMARTFORCE SERVICE, CLICKING ON THE “I ACCEPT” BUTTON, OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SMARTFORCE SERVICE, YOU: (1) AGREE TO THE TERMS OF THIS AGREEMENT, AND (2) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE SUBSCRIBER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT FULLY AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR OTHERWISE USE THE SMARTFORCE SERVICE. THE TERM “SUBSCRIBER” MEANS THE ORGANIZATION TO WHICH THE SMARTFORCE SERVICE IS PROVIDED. EACH AND EVERY PERSON USING THE SMARTFORCE SERVICE ON BEHALF OF THE SUBSCRIBER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO DO SO ON SUBSCRIBER'S BEHALF. IF SUBSCRIBER HAS ENTERED INTO A SIGNED HARDCOPY AGREEMENT REGARDING THE SUBJECT MATTER HEREOF WITH SMARTFORCE, THEN THAT SIGNED HARDCOPY AGREEMENT GOVERNS SUBSCRIBER'S USE OF THE SMARTFORCE SERVICE.
1. DEFINITIONS. As used in this Agreement:
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the SmartForce Service.
1.2 “Authorized User” means Subscriber's employees, representatives, consultants, contractors or agents who are authorized to use the SmartForce Service on behalf of Subscriber and have been supplied user identifications and passwords for this purpose.
1.3 “Documentation” means the technical materials provided or made available by SmartForce to Subscriber that describe the features, functionality or operation of the SmartForce System.
1.4 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.5 “Order Form” means a written (including electronic) order form, executed by both parties, that sets forth the services ordered, the applicable term thereof, and schedule of payments for the provision of such services.
1.6 “SmartForce Service” means the hosted service delivered by SmartForce to Subscriber using the SmartForce System as further described in an Order Form.
1.7 “SmartForce System” means the technology, including software, used by SmartForce to deliver the SmartForce Service to Subscriber.
1.8 “Subscriber Data” means any data provided, imported or uploaded by Subscriber with the SmartForce Service.
2. PROVISION OF SERVICES
2.1 Orders. SmartForce will provide those SmartForce Services as set forth in one or more Order Forms. In the event of any conflict between the main body of this Agreement and any Order Form, the main body of this Agreement shall control except to the extent that the Order Form identifies the specific Section(s) of this Agreement to be superseded by the Order Form, in which case the Order Form will control with respect to such Section(s).
2.2 License Grant. Subject to the terms and conditions of this Agreement, SmartForce grants to Subscriber a non-exclusive, nontransferable, non-sublicensable license to, during the Subscription Period (as defined below), solely for Subscriber's internal business purposes and in accordance with the Documentation and the limitations set forth in Section 2.5, (a) access and use the SmartForce Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the SmartForce Service.
2.3 Access. SmartForce will provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the SmartForce Service in accordance with the Access Protocols. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SmartForce Service, and notify SmartForce promptly of any such unauthorized use known to Subscriber.
2.4 Authorized Users. Subscriber may permit any
Authorized Users to access and use the features and functions of the SmartForce Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password (“User ID”) for access to and use of the SmartForce Service. User IDs cannot be shared or used by more than one Authorized User at a time.
2.5 Restrictions. Subscriber will not, and will not permit any Authorized User or other party to: (a) use the SmartForce Service to harvest, collect, gather or assemble information or data regarding any other person in violation of applicable law; (b) knowingly interfere with or disrupt the integrity or performance of the SmartForce Service or the data contained therein; (c) reverse engineer, disassemble or decompile any component of the SmartForce System; (d) interfere in any manner with the operation of the SmartForce Service, or the SmartForce System or the hardware and network used to operate the SmartForce Service; (e) sublicense any of Subscriber's rights under this Agreement, or otherwise use the SmartForce Service for the benefit of a third party or to operate a service bureau; (f) modify, copy or make derivative works based on any part of the SmartForce Service; (g) access or use the SmartForce Service to build a similar or competitive product or service or attempt to access the SmartForce Service through any unapproved interface; or (h) otherwise use the SmartForce Service in a manner inconsistent with applicable law, the Documentation, or this Agreement. Subscriber acknowledges and agrees that the SmartForce Service will not be used, and are not licensed for use, in connection with any of Subscriber's time-critical or mission-critical functions.
2.6 Support. During the Subscription Period, SmartForce will provide email and/or chat support during its normal business hours, and SmartForce will use commercially reasonable efforts to correct any reproducible failures of the SmartForce Service to comply with its Documentation. SmartForce will make available any updates, upgrades, improvements and bug fixes that SmartForce generally makes available to all other customers; provided, that, SmartForce will not have any obligation to create or release any particular updates, upgrades or improvements.
3. OWNERSHIP OF SMARTFORCE TECHNOLOGY
3.1 SmartForce Technology. Subscriber acknowledges that SmartForce retains all right, title and interest in and to the SmartForce System, SmartForce Service and Documentation and all software and all SmartForce proprietary information and technology used by SmartForce or provided to Subscriber in connection with the SmartForce Service (the “SmartForce Technology”), and that the SmartForce Technology is protected by Intellectual Property Rights owned by or licensed to SmartForce. Other than as expressly set forth in this Agreement, no license or other rights in the SmartForce Technology are granted to Subscriber.
3.2 Feedback. Subscriber hereby grants to SmartForce a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SmartForce Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the SmartForce Service. SmartForce will not identify Subscriber as the source of any such feedback.
3.3 Third Party Software. The SmartForce Service may utilize, contain or otherwise use certain third-party software (collectively, the “Third Party Software”). Third Party Software may be subject to additional licensing terms, which SmartForce may deliver or make available from time to time to Subscriber, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the access rights granted to Subscriber and the services performed by SmartForce under this Agreement, Subscriber will pay to SmartForce the then-current fees set forth on SmartForce's pricing page (the “Fees”). All Fees are invoiced annually in advance. Subscriber shall pay such fees within thirty (30) days of receipt of an invoice. SmartForce shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. SmartForce may increase its fees annually upon written notice to Subscriber at least forty-five (45) days prior to expiration of the then-current term. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times. Interest will accrue on late payments at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
4.2 Taxes. All Fees invoiced under this Agreement are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on SmartForce's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the SmartForce Service to Subscriber. Subscriber will make all payments of Fees to SmartForce free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to SmartForce will be Subscriber's sole responsibility, and Subscriber will provide SmartForce with official receipts issued by the appropriate taxing authority, or such other evidence as the SmartForce may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend SmartForce in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
5. SUBSCRIBER DATA AND RESPONSIBILITIES.
5.1 Responsibilities. Subscriber and its Authorized Users shall have access to the Subscriber Data and shall be responsible for all changes to and/or deletions of Subscriber Data and the security of all User IDs and other Access Protocols required in order the access the SmartForce Service. Subscriber shall have the ability to export Subscriber Data out of the SmartForce Service and is encouraged to make its own back-ups of the Subscriber Data. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data.
5.2 Use of Subscriber Data. As between Subscriber and SmartForce, Subscriber will at all times remain the exclusive owner of such Subscriber Data. Subscriber hereby grants to SmartForce a nonexclusive, worldwide, royalty-free and fully paid license (a) to use the Subscriber Data as necessary to provide the SmartForce Service to Subscriber; (b) to use aggregated and anonymized Subscriber Data (i) to improve the SmartForce Service and SmartForce's related product and service offerings; (ii) to create new products and services relating to the SmartForce Service (including analytics services such as providing benchmarking); and (iii) to generate and disclose statistics regarding use of the SmartForce Service, provided, however, that no Subscriber-only statistics will be disclosed to third parties without Subscriber's consent; and (c) as necessary to comply with applicable laws, rules and regulations. Except as expressly specified in this Agreement, Subscriber's provision of or SmartForce's collection of the Subscriber Data hereunder does not transfer to SmartForce or any third party any rights in or ownership thereof.
5.3 Data Security. SmartForce will use commercially reasonable administrative, physical and technical measures designed to protect the confidentiality of Subscriber Data. SmartForce will promptly notify Subscriber of any known or suspected loss or unauthorized access, use or disclosure of any Subscriber Data.
6. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND SMARTFORCE AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, RELATING TO THE SMARTFORCE SERVICE, SMARTFORCE SYSTEM AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SMARTFORCE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SMARTFORCE SERVICE AND THE SMARTFORCE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER
SMARTFORCE NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS WILL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
THE SMARTFORCE SERVICE, THE SMARTFORCE SYSTEM OR THE DOCUMENTATION, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SMARTFORCE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
7.2 Amount of Damages. THE MAXIMUM LIABILITY OF SMARTFORCE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY SUBSCRIBER TO SMARTFORCE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER. IN NO EVENT SHALL SMARTFORCE'S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO
THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SMARTFORCE'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SMARTFORCE OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. TERM AND TERMINATION
8.1 Term. This Agreement commences on the date the parties enter into the first Order Form and will continue until all Order Forms have expired or been terminated. Each Order Form will commence on the applicable effective date set forth therein and will continue for the period set forth therein, or if no period is stated, for one (1) year (the “Initial Subscription Period”). Unless otherwise set forth in the mutually agreed upon the Order Form, each Order Form will automatically renew for successive periods of equal length to the Initial Subscription Period (each, a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”), unless either party provides notice of its intent not to renew the subscription upon no less than thirty (30) days written notice prior to the end of the then-current Subscription Period.
8.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
8.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; and (b) for thirty (30) days following after the effective date of termination, SmartForce will make available the Subscriber Data for export by Subscriber, after which time SmartForce shall discontinue all use of Subscriber Data and destroy all copies of Subscriber Data in its possession. The Sections titled Definitions, Restrictions, Ownership, Disclaimers, Limitation of Liability, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
9. MISCELLANEOUS
9.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.2 Compliance with Laws. Subscriber shall at all times comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the SmartForce Services hereunder, including, but not limited to those relating to open records requests.
9.3 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SmartForce, or any products utilizing such data, in violation of the United States export laws or regulations.
9.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.6 Remedies. Except as provided in Section 7, the parties' rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the SmartForce Services and Documentation contain valuable trade secrets and proprietary information of SmartForce, that any actual or threatened breach by Subscriber of its obligations with respect to Intellectual Property Rights of SmartForce will constitute immediate, irreparable harm to SmartForce for which monetary damages would be an inadequate remedy. In such case, SmartForce will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any SmartForce Services, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
9.7 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
9.8 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
9.9 Independent Contractors. Subscriber's relationship to SmartForce is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have and will not represent to any third party that it has, any authority to act on behalf of SmartForce.
9.10 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
9.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Any preprinted terms included in any purchase order that are different from or are in addition to the terms of this Agreement shall be void and of no force or effect. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and SmartForce.