This SaaS Subscription Agreement, including all exhibits, schedules, Statements of Work and Orders (as defined below) (collectively, the “Agreement”) are the terms of service under which Upskill Talent, Inc. (“Upskill Talent”) agrees to grant the customer (“Customer”) access to and use of the Upskill Talent Services, Introductory SaaS Service, and Beta Releases (as defined below). By indicating Customer’s acceptance of this Agreement, executing an Order that references this Agreement, or using the Upskill Talent Services, Introductory SaaS Service, or Beta Releases, Customer agrees to be bound by this Agreement. If you are entering into this Agreement on behalf of an entity, such as the company you work for, then you represent to Upskill Talent that you have the legal authority to bind the Customer to this Agreement. Upskill Talent and Customer are each a “Party” and collectively, the “Parties”, hereunder.
“Affiliate” means with respect to a Party, any person or entity that controls, is controlled by or is under common control with such Party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
“Agent” or “Software” means Upskill Talent software, including but not limited to the application that runs in the Customer’s operating environment and captures systems information, including but not limited to calls and events.
“Authorized User” means a named individual that: (a) is an employee, representative, consultant, contractor, or agent of Customer or a Customer Affiliate; (b) is authorized to use the SaaS Service pursuant to this Agreement, and (c) has been supplied a user identification and password by Customer. Customer shall be responsible for all access and use of the SaaS Service by the Authorized Users.
“B2B Relationship Data” means any administrative, transactional or account-related data or communications provided by or on behalf of Customer to Upskill Talent in connection with the creation, purchase, maintenance, or support of Customer’s account with Upskill Talent.
“Customer Data” means any data or other information which is provided by (or on behalf of) Customer directly or indirectly to Upskill Talent in connection with the Services, Introductory SaaS Service or Beta Releases, including data that is collected by the Software, and shall not include Customer Personal Data or Service Analytics as defined hereunder.
“Customer Personal Data” means any Customer Data which (i) qualifies as “Personal Data” “Personal Information” “Personally Identifiable Information” or any substantially similar term under applicable privacy laws and (ii) is processed by Upskill Talent on behalf of Customer in connection with the Agreement. For the avoidance of doubt, Customer Personal Data shall not include B2B Relationship Data or Service Analytics as defined hereunder.
“Documentation” means the end-user technical documentation provided with the Services, as may be modified from time to time.
“License Entitlement” means the license quantity pursuant to which the SaaS Service is deployed by Upskill Talent, which may be measured by the number of servers, agents, containers, hosts, or metrics, and may include time-based or usage-based billing. “Licenses” means access that enables use of the dashboard.
“Open Source Software” means a program in which source code is made publicly and freely available for use and modification pursuant to certain license terms.
“Order” executed by and between Upskill Talent and Customer or electronically accepted by Customer that references this Agreement, purchase confirmation, or any other document which details the Services to be provided by Upskill Talent, the fees associated therewith, and any other transaction-specific terms and conditions.
“Statement of Work” or “SOW” means a statement of work or other such executed document that references this Agreement, whereby Customer engages Upskill Talent to perform certain training, consulting, technical account management, professional, or similar services related thereto.
“SaaS Service” means Upskill Talent’s hosted service solution as specified on an Order, made available at www.UpskillTalent.com. The SaaS Service may include the use of certain Software or the use of the dashboard, as applicable.
“Services” means the specific ordered SaaS Service, Support Services, and any of the training services, technical account management services, and/or consulting or other professional services, pursuant to one or more Orders and SOW(s), if applicable.
“Subscription Term(s)” means the subscription period(s) specified in an Order, during which Authorized Users may use the SaaS Service, subject to the terms of this Agreement.
“Support Services” means the maintenance and support services provided by Upskill Talent to Customer during the Subscription Term, as set forth on the Order.
“Update” is a SaaS Service release that Upskill Talent makes generally available to all Upskill Talent customers, along with any corresponding changes. An Update may be an error correction or bug fix; or it may be an enhancement, new feature, or new functionality.
2.1 Provision of the SaaS Service. Subject to Customer’s payment of all fees due hereunder, Upskill Talent grants Customer a limited, nonexclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the SaaS Service during the applicable Subscription Term, pursuant to the License Entitlement as set forth in the applicable Order, solely for Customer’s internal business purposes. This grant includes the right to implement the Software for use with the SaaS Service, if applicable. Customer may permit its Affiliates to use and access the SaaS Service and Documentation in accordance with this Agreement, but the Customer shall be responsible for the compliance of all Affiliates with this Agreement, Documentation, and the Order(s).
2.2 Use Restrictions. Customer shall not (and shall not permit any third party to): (a) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the SaaS Service in a manner that allows anyone to access or use the SaaS Service without an Authorized User subscription, or to commercially exploit the SaaS Service; (b) use the SaaS Service to provide, or incorporate the SaaS Service into, any product or service provided to a third party; (c) use the SaaS Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code except to the extent expressly permitted by applicable law (and then only upon advance notice to Upskill Talent); (e) copy, modify or create any derivative work of the SaaS Service or any Documentation; (f) remove or obscure any proprietary or other notices contained in the SaaS Service; (g) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned by Customer to new Authorized Users replacing individuals who no longer use the SaaS Service for any purpose); (h) publicly disseminate performance information regarding the SaaS Service; further, Customer shall not (and shall not permit any third party to) access or use the SaaS Service: (i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights and/or in violation of applicable laws; (ii) to send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, or agents; (iii) in a manner that interferes with or disrupts the integrity or performance of the SaaS Service (or the data contained therein); (iv) to gain unauthorized access to the SaaS Service (including unauthorized features and functionality) or its related systems or network; or (v) disable or bypass the measures that Upskill Talent may use to prevent or restrict access to the SaaS Service, or if applicable, use the SaaS Service in excess of the License Entitlement limits set forth in the Order(s).
2.3 Support Services. During the Subscription Term, Upskill Talent will provide Support Services to the Customer in accordance with the purchased Support Services level detailed in Exhibit A. Customer is required to have Support Services for the duration of the applicable Subscription Term. Customer shall be entitled to Updates to the extent Upskill Talent incorporates such Updates into the SaaS Service subject to the applicable Order during the Subscription Term.
2.4 Use of Services Deliverables. Subject to Customer’s payment of all fees due hereunder, Upskill Talent grants Customer a limited, non-exclusive, royalty-free, non-sublicensable, non-transferable license (except as specifically permitted in this Agreement), to use those elements of the Upskill Talent Technology (as defined below) embodied in the Services deliverables, if any, in Customer’s ordinary course of business, solely as so embodied. Upskill Talent reserves all other rights in and to the Upskill Talent Technology.
2.5 Beta Releases. From time to time, Upskill Talent may grant Customer access to “alpha”, “beta”, “technical preview” or other early-stage products (“Beta Releases”). Customer shall comply with all terms related to any Beta Releases as posted or otherwise made available to Customer. Upskill Talent may add or modify terms related to access or use of the Beta Release at any time. While Upskill Talent may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT SERVICES, MAINTENANCE, STORAGE, OR SERVICE LEVEL OBLIGATIONS OF ANY KIND. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH UPSKILL TALENT WILL NOT BE RESPONSIBLE.
Upskill Talent makes no promises that future versions of a Beta Release will be released. Customer’s use of the Beta Release will automatically terminate upon the release of a generally available version of the applicable Beta Release or upon notice of termination by Upskill Talent.
2.6 Introductory SaaS Service. From time to time, Upskill Talent may make available one or more offers for use of an introductory tier of the SaaS Service at no cost (“Introductory SaaS Service”). Customer shall comply with all terms, including applicable service, account and data retention limits related to any Introductory SaaS Service, all as posted or otherwise made available to Customer. Upskill Talent may add or modify terms related to access or use of the Introductory SaaS Service at any time. While Upskill Talent may provide limited support as further detailed in the documentation for the Introductory SaaS Service, CUSTOMER AGREES THAT ANY INTRODUCTORY SAAS SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. Customer further acknowledges that Customer, subject to the terms and conditions of this Agreement, may upgrade to the SaaS Service at any time.
2.7. Either Party may suspend or terminate access or use of any Introductory SaaS Service or Beta Release at any time for any reason or no reason. Notwithstanding anything to the contrary in the Agreement, after suspension or termination of Customer’s access to or use of any Introductory SaaS Service or Beta Release for any reason (a) Customer will not have any further right to access or use the applicable Introductory SaaS Service or Beta Release and (b) Customer Data used in the applicable Introductory SaaS Service or Beta Release may be deleted or inaccessible. Notwithstanding anything contained to the contrary in this Agreement, Upskill Talent and its licensors’ cumulative and aggregate liability arising out of or relating to the Introductory SaaS Service or Beta Releases is limited to $1,000 USD.
3.1 Data Collection. Customer has exclusive control and responsibility for determining what Customer Data is submitted to the Services, Introductory SaaS Service and Beta Releases and for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to Upskill Talent.
3.2 Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable laws in its use of the Services, Introductory SaaS Service and Beta Releases. Customer represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any laws and regulations.
3.3 Customer Data; Storage. Without limiting Upskill Talent’s obligations hereunder, Customer acknowledges that Customer is responsible for properly configuring and using the SaaS Service, Introductory SaaS Service and Beta Releases and otherwise taking reasonable action to secure and protect Customer accounts and Customer Data.
3.4 Open Source Software and Third-Party Software. Customer acknowledges and agrees that certain Open Source Software libraries, components and utilities, and other third-party software not owned or developed by Upskill Talent are embedded in the Software. The publicly available open source license terms governing the Open Source Software shall take precedence over this Agreement to the extent that the Agreement imposes greater restrictions on Customer. Customer hereby acknowledges that Upskill Talent disclaims and makes no representation or warranty with respect to the Open Source Software, or any portion thereof, and notwithstanding anything contained to the contrary herein assumes no liability for any claim that may arise with respect to such Open Source Software or Customer’s use or inability to use the same.
5.1 Fees and Payment. (A) All fees are as set forth in the applicable Order and shall be paid by Customer no later than five days after signing up, unless otherwise specified in the applicable Order or SOW. Except as expressly set forth in an Order or SOW: (a) payment obligations are non-cancelable and fees are non-refundable; and (b) Customer may not decrease the License Entitlement or downgrade to the Introductory SaaS Service during the applicable Subscription Term. Where Customer designates use of a third-party payment processor network, Customer shall be responsible for payment of all fees and charges associated with use of such network (including registration, participation, and payment processing fees) and Upskill Talent may invoice for such fees together with the subscription fees or on separate invoice(s). For SaaS Service subscriptions that are usage based, for overage incurred during the Subscription Term, Upskill Talent shall calculate Customer’s monthly usage in accordance with the lower of:
a) overage rates set forth in the Order or b) the usage rates as posted or otherwise made available to Customer. In such event, Upskill Talent shall invoice Customer based on the prior month’s activity. Such overage fees are due and payable immediately upon invoice.
(B) For certain SaaS Service subscriptions, pay as you go billing may be made available to Customer. Unless otherwise set forth in an applicable Order: (i) Upskill Talent will calculate Customer’s usage and invoice Customer for the prior month’s activity (ii) Customer will pay Upskill Talent the applicable the usage rates as posted or otherwise made available to Customer (iii) fees are due and payable immediately upon invoice and (iv) Upskill Talent reserves the right to increase the fees by giving Customer at least thirty (30) days prior written notice. Upskill Talent may bill Customer more frequently for fees accrued if the Customer account is suspected to be at risk of non-payment.
5.2 Effect of Nonpayment. This Agreement or Customer’s access to Services may be suspended or terminated if Customer’s account falls into arrears. Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law, plus all collection costs.
5.3 Taxes. All fees stated on Orders are exclusive of any taxes, levies, or duties (“Taxes”), and Customer will be responsible for payment of all such Taxes excluding taxes based solely on Upskill Talent income. Unless Customer provides Upskill Talent a valid state sales/use/excise tax exemption certificate, Customer will pay and be solely responsible for all Taxes. Upskill Talent may invoice Taxes in accordance with applicable law together on one invoice or a separate invoice. Upskill Talent reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other information provided by Customer on the location of Customer’s use of the SaaS Service. Customer will be responsible for any Taxes, penalties or interests that might apply based on Upskill Talent’s failure to charge appropriate tax due to incomplete or incorrect location information provided by Customer. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the Services under this Agreement, Customer shall increase the sum paid to Upskill Talent by an amount necessary for the total payment to Upskill Talent equal to the amount originally invoiced.
5.4 Travel and Expenses. Customer will pay any reasonable and actual pre-approved out-of-pocket expenses incurred in connection with the Services which may include without limitation, airfare, lodging, and meals. Upskill Talent shall provide Customer invoices and receipts for any such Customer pre-approved expenses.
5.5 Rescheduling Policy Applicable to Services. Upskill Talent and Customer will commence Services (which for purposes of this Section 5.5 excludes the SaaS Service and Support Services) on a start date to be mutually agreed to between the Parties. Customer may reschedule Services by notifying Upskill Talent in writing (which can include by email) with fifteen (15) business days’ prior notice and Upskill Talent will make commercially reasonable efforts to reschedule. If performance of the Services is delayed due to Customer’s failure to provide required access, personnel availability or is otherwise canceled with less than fifteen (15) business days’ notice once ordered by Customer, Upskill Talent may charge Customer the then prevailing daily charge, plus reimbursement of all travel-related expenses (if applicable), for each day (up to a maximum of 15 days) for each person assigned by Upskill Talent to provide the Services. Upskill Talent strongly recommends scheduling the Services engagement in a single instance over a period of consecutive days. However, in no event shall Services be scheduled in fewer than in one full day increments, unless otherwise set forth in an SOW. No Services shall be scheduled in partial day increments.
6.1 Term. This Agreement will continue for so long as there is an Order in effect between the Parties or for so long as Customer is using the Introductory SaaS Service, unless earlier terminated pursuant to the terms of this Agreement.
6.2 Termination for Cause. Either Party may terminate this Agreement (or any affected Order or Statement of Work) (a) upon the other Party’s material breach that remains uncured for thirty (30) days following written notice of such breach, except that termination will take immediate effect on written notice in the event of a breach of Section 2.2 (“Use Restrictions”), Section 2.4 (“Use of Services Deliverables”) or 10 (“Confidential Information”); or (b) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (and not dismissed within sixty (60) days thereafter).
6.3 Termination for Convenience. Either Party may terminate this Agreement, Order(s) or Statement of Work, for any reason or for no reason, by providing the other Party at least thirty (30) days’ prior written notice. However, in the event of a Customer termination for convenience, Customer shall not be entitled to any refund or relief from payment of any fees paid or payable under the Agreement, applicable Orders or Statement of Work.
6.4 Treatment of Customer Data Following Expiration or Termination. Customer agrees that following termination of this Agreement, or termination or expiration of any Order, Upskill Talent may immediately deactivate Customer’s account(s) associated with the Agreement or applicable Order. During the thirty (30) day period following termination or expiration, Upskill Talent will grant a reasonable number of Authorized Users access to the SaaS Service for the sole purpose of retrieving Customer Data. Within a reasonable time thereafter, Upskill Talent will delete Customer Data from the SaaS Service. Notwithstanding the foregoing, Customer understands that Upskill Talent may retain copies of Customer Data in regular backups or as required by law, which will remain subject to the confidentiality and security standards set forth in Sections 10 and 11, respectively, for so long as Customer Data is retained by Upskill Talent. Customer acknowledges that the retention of Customer Data in the SaaS Service is at all times subject to Upskill Talent’s SaaS Service data retention policies which shall be made available to Customer upon request and are subject to update from time to time in Upskill Talent’s reasonable discretion, but in no event shall any such update result in a material reduction of SaaS Service data retention periods in effect during Customer’s applicable Subscription Term. Any “snapshot” of Customer Data therefore is inclusive of the Upskill Talent SaaS Service data retention policies in effect at the time of Customer Data retrieval.
6.5 Effect of Termination. Upon early termination of this Agreement by Customer for Upskill Talent’s uncured material breach pursuant to Section 6.2 or by Upskill Talent pursuant to Section 6.3, Customer is entitled to a prorated refund of prepaid fees relating to the Services applicable to the remaining period in the applicable Subscription Term. Upon expiration or termination of this Agreement by Upskill Talent for Customer’s uncured material breach pursuant to Section 6.2 or by Customer pursuant to Section 6.3, unpaid fees relating to the Services applicable to the duration of any applicable Subscription Term will be immediately due and payable. In addition, upon expiration or termination of this Agreement for any reason: (a) all rights granted to Customer under this Agreement, and Upskill Talent’s obligation to provide the Services, Introductory SaaS Service or Beta Releases will terminate (including any and all rights related to Software); and (b) any payment obligations accrued pursuant to this Agreement, as well as the provisions of Section 6, 8, 10, and 12 of this Agreement will survive such expiration or termination.
7.1 Limited Warranty. Upskill Talent warrants that during the Subscription Term the Services made available for Customer’s use (which for purposes of this Section 7.1 excludes Support Services which shall be addressed under Exhibit A) will operate in substantial conformity with the applicable Documentation. In the event of a material breach of the foregoing warranty, Customer’s exclusive remedy and Upskill Talent’s entire liability, shall be for Upskill Talent to use commercially reasonable efforts to correct the reported non-conformity within thirty (30) days, or if Upskill Talent determines such remedy to be impracticable, Upskill Talent at its discretion, may terminate the applicable Orders (and applicable Statement of Work, if any) and Customer will receive, as its sole remedy, a refund of any fees Customer has pre-paid for use of affected Services for the terminated portion of the applicable Subscription Term. The warranty set forth in this Section 7.1 shall not apply if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or any use provided on a no-charge or evaluation basis.
7.2 Malicious Code. Upskill Talent warrants that Upskill Talent will not knowingly introduce into the Services software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.
7.3 Warranty Disclaimer. EXCEPT FOR THE WARRANTY IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS”. NEITHER UPSKILL TALENT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, UPSKILL TALENT DOES NOT WARRANT THE SAAS SERVICE WILL BE ERROR-FREE OR THAT USE OF THE SAAS SERVICE WILL BE UNINTERRUPTED. UPSKILL TALENT’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY ERROR SHALL BE LIMITED TO PROVISION OF SUPPORT SERVICES.
8.1 Liability Cap. EXCEPT WITH RESPECT TO: (A) EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (“INDEMNIFICATION”) (FOR WHICH THE LIABILITY LIMITATION SHALL BE ONE MILLION DOLLARS ($1,000,000) IN THE CUMULATIVE AND AGGREGATE FOR ALL CLAIMS); AND (B) CUSTOMER’S INFRINGEMENT OF UPSKILL TALENT’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY AND/OR DUE FROM CUSTOMER FOR THE THEN-CURRENT ANNUAL SUBSCRIPTION TERM, UNDER THE APPLICABLE ORDERS(S) RELATING TO THE CLAIM.
8.2 EXCEPT FOR CUSTOMER’S INFRINGEMENT OF UPSKILL TALENT’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY, OR UPSKILL TALENT’S AFFILIATES OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN
CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Limitations Fair and Reasonable. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
9.1 By Upskill Talent. Upskill Talent shall defend Customer from and against any claim by a third party alleging that the SaaS Service when used as authorized under this Agreement infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the SaaS Service, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”) and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer by a court of competent jurisdiction or agreed in settlement by Upskill Talent (including reasonable attorneys’ fees) resulting from such Infringement Claim. Upskill Talent will have no obligation and assumes no liability under this Section 9 or otherwise with respect to any claim based on: (1) if the SaaS Service is modified by any party other than Upskill Talent, but solely to the extent the alleged infringement is caused by such modification; (2) if the SaaS Service is combined, operated or used with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by Upskill Talent where there would be no Infringement Claim but for such combination; (3) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the SaaS Service; (4) if Customer settles or makes any admissions with respect to a claim without Upskill Talent’s prior written consent; or (5) to any use provided on a no-charge or evaluation basis. THIS SECTION 9 SETS FORTH UPSKILL TALENT’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Remedies. If Customer’s use of the SaaS Service is (or in Upskill Talent’s opinion is likely to be) enjoined, if required by settlement or if Upskill Talent determines such actions are reasonably necessary to avoid material liability, Upskill Talent may, at its option: (i) procure for Customer the right to use the SaaS Service in accordance with this Agreement; (ii) replace or modify, the SaaS Service to make it non-infringing; or (iii) terminate Customer’s right to use the SaaS Service and discontinue the related Support Services, and upon Customer’s certification of deletion of the Software (if any), refund prorated pre-paid fees for the remainder of the applicable Subscription Term for the SaaS Service.
9.3 By Customer. Customer will defend, indemnify and hold Upskill Talent harmless from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by Upskill Talent) finally awarded against Upskill Talent arising from or in connection with any claim alleging that Upskill Talent’s use of the Customer Data infringes a copyright, trademark, trade secret or breaches privacy, or publicity right of a third party.
9.4 Indemnity Process. Each Party’s indemnification obligations are conditioned on the indemnified Party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim; and (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party’s request and expense. The indemnified Party may participate in the defense of the claim, at the indemnified Party’s sole expense (not subject to reimbursement). Neither Party may admit liability for or consent to any judgment or concede or settle or compromise any claim unless such admission, concession, settlement, or compromise includes a full and unconditional release of the other Party from all liabilities in respect of such claim.
10.1 Each Party (as “Receiving Party”) agrees that all code, inventions, know-how, business, personal data, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Data, pricing information, Upskill Talent Technology, Beta Releases (including the existence of), performance information relating to the Services, Introductory SaaS Service or Beta Releases, and the terms and conditions of this Agreement shall be deemed Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party without use of or reference to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10.2 Customer Personal Data. Customer acknowledges that the Services, Introductory SaaS Service and Beta Releases do not require Customer to input or otherwise transmit Customer Personal Data and Customer agrees not to input or otherwise transmit any Customer Personal Data to the Services, Introductory SaaS Service or Beta Releases without Upskill Talent’s explicit consent or as otherwise set forth in the applicable Orders or other written agreement between the Parties.
10.3 Data Processing Agreement. Subject to Section 10.2, and so long as Customer has separately executed the same, the terms of the Upskill Talent Global Data Processing Agreement (“DPA”) are hereby incorporated by reference and shall apply to Upskill Talent’s processing of Customer Personal Data on behalf of Customer. Customer represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of Customer Personal Data.
12.1 If Customer acquired the Services from an Upskill Talent authorized distributor or reseller (“Partner”), then this Agreement is not exclusive of any rights Customer obtains under Partner’s sale agreement. If a Partner has granted Customer any rights that Upskill Talent does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer’s sole recourse with respect to such rights is against the Partner. The provisions of Section 6.1-6.3 do not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Partner sale agreement. However, if the Partner from whom Customer purchased the Services fails to pay Upskill Talent any amounts due in connection with the Services, then Upskill Talent may suspend Customer’s rights to use the Services, with notice to Customer. Customer acknowledges that Customer’s remedy in the event of such suspension is solely against the Partner.
12.2 References. Unless otherwise specified in the applicable Orders, Upskill Talent may refer to Customer as one of Upskill Talent’s customers and use Customer’s logo as part of such reference, provided that Upskill Talent complies with any Customer trademark usage requirements provided by Customer. Upon reasonable request, Customer will serve as a reference account for Upskill Talent, provided, however, that Upskill Talent will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference activity. Furthermore, if so specified in the applicable Order, Upskill Talent may either: (a) issue a press release announcing the relationship between Upskill Talent and Customer, or (b) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed.
12.3 Compliance With Laws. Upskill Talent and Customer will comply with all applicable laws and regulations with respect to performance under this Agreement, including, without exception all requirements of applicable state and federal privacy laws and regulations governing personally identifiable information, personal information, personal data and any other substantially similar term. Without limiting the foregoing, each Party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anticorruption corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti- Corruption Laws”). Each Party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Each Party represents and warrants to the other that neither it nor its Affiliates, nor any of its or their users, officers or directors, are persons, entities or organizations with whom the other Party is prohibited from dealing (including provision of software, products or services) by virtue of any applicable law, regulation, or executive order, including US export control laws, and names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List.
12.4 Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning Party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other Party are paid in full. If Customer is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of Upskill Talent, then Upskill Talent may terminate this Agreement upon thirty (30) days prior written notice.
12.5 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.6 Governing Law; Jurisdiction and Venue. This Agreement will be governed by the Applicable Law described below as applicable (without regard to the conflicts of law provisions of any jurisdiction), and claims arising out of or in connection with this Agreement will be subject to binding arbitration in accordance with Section 12.6 to be located in the Arbitration Tribunal and Venue of the Jurisdiction based on the Customer’s country of residence, according to the following table:
|Arbitration Tribunal and Venue
|State of California, USA
|American Arbitration Association in San Francisco, California, USA
|Outside of the Americas
|England & Wales
|London Court of International Arbitration, London, England
Each Party irrevocably submits to the personal jurisdiction and venue of and agrees to service of process issued or authorized by any court in the Jurisdiction in any action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
12.7 Arbitration. Any and all disputes, claims or causes of action, in law or equity, including without limitation, claims arising out of or related to the Parties’ negotiations and inducements to enter into this Agreement, enforcement, breach, performance or interpretation of this Agreement will be submitted to mandatory, binding arbitration under the auspices of the Arbitration Tribunal applicable above, or its successors, under its then-current commercial arbitration rules and procedures. Both Parties acknowledge that by agreeing to arbitration, they waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. Nothing in this Agreement is intended to prevent either Party from obtaining injunctive relief in any competent court to prevent irreparable harm pending the conclusion of any such arbitration. Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator(s) or any other court may, in its discretion, award reasonable costs and fees to the prevailing Party. This Agreement is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
12.8 Notice. Notices to a Party will be sent by first-class mail, overnight courier or prepaid post to the address for such Party as identified on the first page of this Agreement and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. Customer will address notices to Upskill Talent Legal Department, with a copy to info@UpskillTalent.com. Either Party may from time to time change its address for notices under this Section 12.8 by giving the other Party at least thirty (30) days prior written notice of the change.
12.9 Force Majeure. Neither Party will be in default or liable under this Agreement by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the reasonable control of such Party, including acts of God or of the public enemy, terrorism, political unrest, U.S. or foreign governmental acts in either a sovereign or contractual capacity, fire, flood, failure of third party connections, epidemic, pandemic or virus, utilities or networks, earthquake, hurricane, hostile attacks, restrictions, strikes, and/or freight embargoes.
12.10 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claiming such waiver. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.11 Entire Agreement; Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. In the event of a conflict between the terms of this Agreement and the terms of any Orders, or Exhibit hereto, such conflict will be resolved in the following order, except to the extent expressly specified otherwise in the appliable Orders or SOW: this Agreement (b) the Exhibits (c) Order (d) Statement of Work. Any preprinted terms on any Customer ordering documents or terms referenced or linked therein will have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by Upskill Talent. Customer acknowledges that the SaaS Service is an on-line, subscription-based product, and that in order to provide improved customer experience Upskill Talent may make changes to the Services, and Upskill Talent will update the applicable Documentation accordingly. The Support Service level may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Upskill Talent’s obligations).
12.12 Subcontractors. Upskill Talent may use the services of subcontractors and permit them to exercise the rights granted to Upskill Talent in order to provide the Services, Introductory SaaS Service, and Beta Releases under this Agreement. These subcontractors may include, for example, Upskill Talent’s hosting infrastructure. Upskill Talent remains responsible for compliance of any such subcontractor with the terms of this Agreement.
12.13 Feedback. Upskill Talent shall be free to use, irrevocably, in perpetuity, for free and for any purpose, all suggestions, ideas and/or feedback relating to the Services, Introductory SaaS Service or Beta Releases (collectively, “Feedback”) provided to Customer, its Affiliates and Authorized Users.
12.14 Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
12.15 Export Control. In its use of the Services, Introductory SaaS Service, and Beta Releases, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services, Introductory Service or Beta Release any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.16 Government End-Users. Elements of the Services, Introductory SaaS Service and Beta Releases are commercial computer software. If the user or licensee hereunder is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, Introductory SaaS Service or Beta Release, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services, Introductory SaaS Services and Beta Releases were developed fully at private expense. All other use is prohibited.
12.17 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures.
Upskill Talent will provide Support Services to Customer through other customer support contacts, set forth below (the “Customer Support”). Customer will receive Updates, other software modifications or additions, procedures, or routine or configuration changes that may solve, bypass or eliminate the practical adverse effect of the Error. Support Services do not include: (i) Assistance in the development or debugging of Customer’s system, including the operating system and support tools; (ii) Information and assistance on technical issues related to the installation, administration, and use of enabling technologies such as databases, computer networks, and communications; (iii) Assistance with the installation and configuration of hardware including, but not limited to, computers, hard disks, networks, and printers; (iv) Technical support, phone support, or updates to non-Upskill Talent products or third party enabling technologies not licensed under the Agreement; or (v) Support for: (a) Software not operated on a supported hardware/operating system platform specified in the release notes or Documentation for the Software; (b) altered or modified Software; (c) problems caused by Customer’s negligence, misuse, or hardware malfunction; or (d) use of the Software inconsistent with Upskill Talent’s instructions. Upskill Talent is not responsible for hardware changes necessitated by changes to the Software.
a. Pursuant to the Support Services, as set forth, Upskill Talent shall provide the following level of support services:
b. Standard Support Services. Customer will have access to the Customer Support offered by Upskill Talent and selected by Customer.
Customer is responsible for the prompt installation of all Updates to the Software, as provided by Upskill Talent. Customer shall provide commercially reasonable cooperation and full information to Upskill Talent with respect to the furnishing of Support Services. Customer will designate a certain number of employees or agents that will interface with the Customer Support, and submit Errors, requests or support tickets (the “Technical Support”). Customer is permitted to name as many Technical Contacts as allowed pursuant to the Support Service. Customer’s non-named Technical Contacts may contact the Customer Support, and Upskill Talent will respond to such Error submission and cooperate with the non-named Technical Contact, subject to later verification and involvement of a named Technical Support Contact. Additional named Technical Support Contacts may be permitted upon mutual agreement of the Parties.
Upskill Talent shall not be obligated to fix any Error or incident:
If Upskill Talent determines that it has no obligation to fix the reported incident for one of the reasons stated above, the Parties may mutually agree to enter into a separate agreement authorizing Upskill Talent to provide additional services at Upskill Talent’s then-current professional services rates plus expenses.
Customer acknowledges that new features may be added to the SaaS Service based on market demand and technological innovation. Accordingly, as Upskill Talent develops enhanced versions of the SaaS Service, Upskill Talent may cease to maintain and support older versions of the Software. Upskill Talent will use commercially reasonable efforts to provide Support Services with respect to older versions of the Software that may accompany the SaaS Service. Upskill Talent shall have no obligation to support Software outside of Upskill Talent’s stated EOS/EOL policy for the applicable Software. Such EOS/EOL policies shall be made available to Customer either in the accompanying Documentation or upon request and are subject to update from time to time in Upskill Talent’s reasonable discretion.
Customer shall submit each ticket/email with a severity level designation based on the definitions in the table below. Severity response times may vary, whether Customer contacts the Customer Support via, email or portal. Upskill Talent shall respond to such ticket in accordance with the severity designation and validate Customer’s severity level designation or notify Customer of a proposed change in the severity level designation with justification for the change. Upskill Talent will provide continuous efforts to resolve Severity 1 issues until a workaround or resolution can be provided or until the incident can be downgraded to a lower severity. Upskill Talent will use reasonable efforts to meet reasonable response times for the Errors stated in the table below. Upskill Talent does not guarantee resolution and resolution may consist of a fix, workaround, software availability or other solution Upskill Talent deems reasonable.
Any Error in the SaaS
Upskill Talent will promptly: (i) assign a specialist to correct the
An Error in a SaaS
An Error in the
Upskill Talent will triage the request and may include
An Error in the SaaS
Upskill Talent will triage the request and may include
This Upskill Talent Security Addendum (the “Addendum”) outlines Upskill Talent’s security infrastructure and practices, as may be applicable to the Services. This Addendum will control to the extent of a conflict between the Agreement and this Addendum. Capitalized terms not defined herein are defined in the Agreement.
Upskill Talent’s security control environment, in connection with certain regions of the SaaS Service, undergoes an independent evaluation in the form of a SOC 2 Type 2 Security audit. These reports are available upon request. For more information on Upskill Talent’s security and related certifications (excluding whitepapers or other marketing materials referenced on the site, if any), email firstname.lastname@example.org for more information.
The SaaS Service leverages third party cloud infrastructure, such as Amazon Web Services (AWS), and is operated in a multi-tenant environment designed to segregate and restrict customer data access based on business needs. The architecture provides an effective logical data separation for different customers via customer-specific unique identifiers, allows the use of customer and user role-based access privileges and provides separate environments for different functions, especially for testing and production, and provides additional data segregation. The use of cloud infrastructure permits Customers to self-select in which regions/data center(s) to host Customer Data. Upskill Talent and the third party cloud provider operate a shared security responsibility model, where the third party cloud provider is responsible for the security of the underlying cloud infrastructure (such as data center facilities, hardware and software systems).
Upskill Talent maintains a security incident management program. Upon detection of a security incident, including but not limited to a data breach incident, Upskill Talent undertakes an internal investigation and where appropriate, remediation process, up to and including notification to impacted individuals, all in accordance with applicable law.
Upskill Talent maintains a set of physical security policies, processes and procedures based on industry best practices that govern physical security and environmental controls (e.g. badging, escorting) used to both guard Upskill Talent’s systems and scoped data, and to govern visitors to Upskill Talent’s physical locations and facilities. Upskill Talent maintains a change management process to monitor changes to information systems, network devices, system components, physical and environment changes, and software development.
Upskill Talent’s data and information system assets include corporate and customer assets. These asset types are managed under our security policies and procedures. Upskill Talent authorized personnel who access and handle these assets are required to comply with the procedures and guidelines defined by Upskill Talent’s security policies. Anti-virus tools are configured to run scans, virus detection, real-time file write activity and signature file updates. Laptop and remote users are covered under virus protection. Role based access controls are implemented for access to information systems. Processes and procedures are in place to address employees who are voluntarily or involuntarily terminated. Access controls to sensitive data in our databases, systems, and environments are set on a need-to-know / least privilege necessary basis. Access control lists define the behavior of any user within our information systems, and security policies limit them to authorized behaviors.
Upskill Talent maintains a corporate risk assessment program and policy that defines risk levels for discovered issues with employee(s) assigned to manage and regularly review the program and policy. Upskill Talent’s risk management program includes guidance on the potential threat identification, and mitigation strategies for those risks. Upskill Talent performs risk assessments on an annual basis.
Upskill Talent maintains a documented business continuity/disaster recovery plan and tests it on an annual basis. To minimize service interruption due to hardware failure, natural disaster, or other catastrophe, Upskill Talent implements a disaster recovery program at all our data center locations. This program includes multiple components to minimize the risk of any single point of failure. Application data is replicated to multiple systems within the data center and, in some cases, replicated to secondary or backup data centers that are geographically dispersed to provide adequate redundancy and high availability.
Upskill Talent has documented security policies and procedures that define information security rules and requirements for its Software and Services environment that are reviewed at least annually and updated as necessary. Customer Data submitted by Customer to the SaaS Service is transmitted securely with adequate standard in-transit encryption protection. Additionally, Upskill Talent uses the most current industry standard encryption for at-rest encryption of Customer Data.
Upskill Talent maintains a vendor management program that establishes the rules and requirements for any vendor that will access, store and/or process Upskill Talent’s information assets and includes conducting the relevant security assessment for such vendor.
Upskill Talent employees are required to sign confidentiality agreements and acknowledge Upskill Talent’s Code of Ethics. The Code of Ethics outlines Upskill Talent’s expectation that every employee will conduct business ethically, lawfully and with integrity and respect for each other as well as Upskill Talent customers, partners, vendors, competitors and other third parties. All employees are provided with security training as part of onboarding and all employees are required to complete an annual training course on code of conduct policies. Additionally, Upskill Talent currently conducts employment background checks on all Upskill Talent employees and certain consultants and contractors upon hire, unless expressly, and then solely to the extent, prohibited by law: (1) to verify the accuracy of employment chronology and educational credentials; and (2) to verify such employee, consultant or contractor (as applicable) has no civil, criminal or credit history that would preclude successful fulfillment of the role with Upskill Talent including, but not limited to, meeting confidentiality obligations. There are processes in place to address both the onboarding and offboarding of Upskill Talent employees, consultants and contractors.
Upskill Talent conducts security assessments to identify vulnerabilities in both Upskill Talent’s corporate IT infrastructure and SaaS Service, and to determine the effectiveness of the Upskill Talent patch management program.
Upskill Talent, or an authorized third party on Upskill Talent’s behalf, conducts annual penetration testing of its SaaS Service to assess current threats and vulnerabilities. Each security concern is reviewed to determine if it is applicable, ranked based on risk, and assigned to the appropriate team for remediation.
Following termination or expiration of the Customer’s subscription to the relevant SaaS Service, Upskill Talent shall deactivate Customer’s account and Customer has thirty (30) days to access its account and download or export Customer Data. Following such thirty (30) day period, Customer Data in Upskill Talent systems or otherwise in its possession or under its control shall be subject to deletion.
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