“SmartCom” means the Smart Communications legal entity named on the SOW providing Training Services to the Customer.
“Customer” means the legal entity set out in the SOW receiving Training Services from SmartCom.
These terms and conditions govern Customers’ provision of Training Services and associated Platform access by SmartCom.
BY EXECUTING AN SOW FOR THE PROVISION OF TRAINING SERVICES OR BY RECEIVING THE TRAINING SERVICES OR ACCESSING THE PLATFORM, CUSTOMER ACCEPTS THESE CONDITIONS. IF THE INDIVIDUAL ACCEPTING THESE CONDITIONS IS ACCEPTING ON BEHALF OF A CUSTOMER OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE CONDITIONS. IF THE INDIVIDUAL ACCEPTING THESE CONDITIONS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE CONDITIONS AND MAY NOT USE THE TRAINING SERVICES OR ACCESS THE PLATFORM.
These Conditions are effective between Customer and SmartCom as of the date of Customer accepting these Conditions as per the above (“Effective Date”).
If there is any conflict or ambiguity between these Conditions and the SOW, the SOW shall take precedence. Collectively, these Conditions https://www.smartcommunications.com/wp-admin/users.php and the SOW constitute the “Agreement”. No terms and conditions referred to or set out in any purchase order, confirmation of order, specification or other document provided by the Customer shall form part of this Agreement nor apply to the provision of the Training Services. This Agreement constitutes a legal agreement which contains the entire agreement between SmartCom and Customer with respect to the Training Services.
SMARTCOM AND CUSTOMER AGREE AS FOLLOWS:
1. Scope and Interpretation
1.1. These Conditions apply to the SOW made between SmartCom and the Customer.
1.2 In these Conditions
“Affiliate” means a company which controls, is controlled by or is under common control with the relevant party to this Agreement;
“Applicable Law” means: (i) any statute, regulation, by-law or subordinate legislation in force from time to time to which a Party is subject and/or in any jurisdiction that the Training Services are provided to or in respect of; and (ii) the common law and laws of equity as applicable to the Parties from time to time;
“Community Page” means SmartCom’s on-line community page currently located at https://community.smartcommunications.com/s/article/DOC-6262;
“Content” means the information, materials, services and content available by way of the Training Services and/or Platform;
“Training Services” means the relevant training services described in the SOW provided by SmartCom to Customer;
“Privacy Laws” means any laws and regulations relating to privacy or the use or processing of data relating to natural persons to the extent they apply to a particular Party, including but not limited to: The Privacy Act 1988 (Cth); The California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act, and any regulations promulgated thereunder (collectively, the “CCPA”); The Privacy Act 2020 (Act); The Colorado Privacy Act; The Connecticut Data Privacy Act; The Utah Consumer Privacy Act; and the Virginia Consumer Data Protection Act); Personal Information Protection and Electronic Documents Act (‘PIPEDA’); Personal Information Protection Act (Alberta) (‘PIPA Alberta’); Personal Information Protection Act (British Columbia) (‘PIPA BC’); An Act Respecting the Protection of Personal Information in the Private Sector (‘Quebec Privacy Act’); General Data Protection Regulation ((EU) 2016/679) as it forms part of UK law by virtue of Section 3 of the European Union (Withdrawal) Act 2018; The General Data Protection Regulation ((EU) 2016/679); The Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) any further applicable data protection laws or regulations such as (i) the UK’s Data Protection Act; (ii) the Federal Data Protection Act in Germany (BDSG); (iii) the Swiss Federal Act on Data Protection and the Swiss Ordinance to the Federal Act on Data Protection (together the “Swiss DPA”); and any laws or regulations ratifying, implementing, adopting, supplementing or replacing such legislation in each case to the extent in force and as updated, amended or replaced from time;
“Fees” means the SmartCom training fees for the provision of the Training Services as set out in the SOW;
“Force Majeure” means any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes), acts of government, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Parties’ employees), equipment failure, internet service provider failures or delays, or denial of service attacks;
“Intellectual Property Rights” means patents, trademarks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trademarks and service marks, copyrights, know-how, database rights, rights in designs and inventions and all other rights of the same or similar effect or nature, including all renewals, applications and registrations (and the right to apply for registration) relating to any of the foregoing;
“Insolvency Event” means, to the extent the SOW is entered into by SmartCom located in the United Kingdom: in relation to any Party, if that Party: (a) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; (b) has the appointment of, or the application to a court for the appointment of, a liquidator, provisional liquidator, administrator, administrative receiver, or receiver; (c) enters into or applies for (or calls meetings of members or creditors with a view to) one or more of a moratorium, winding up, administration, liquidation (of any kind, including provisional), or composition or arrangement with creditors; or (d) has any of its property subjected to one or more of the appointment of a receiver (of any kind), enforcement of security, distress, or execution of judgement, in each case to include similar events under the Applicable Law of other countries; means, to the extent the SOW is entered into by SmartCom located in the United States of America: in relation to any Party, if that Party: (a) files for protection under Title 11 of the United States Code; (b) has an involuntary petition filed against it under Title 11 of the United States Code that is not dismissed within thirty (30) days of its service; (c) makes a general assignment for the benefit of creditors, a receiver, or administrator, or has an administrative receiver appointed over the whole or any part of its assets or undertakings; or (d) has an order is made or passes an effective resolution for the winding up of that Party; means, to the extent the SOW is entered into by SmartCom located in Australia: in relation to any Party, if that Party: (a) suspends, or threatens to suspend, payment of its debts or becomes insolvent as defined in Section 95A of the Corporations Act (Cth) 2001; (b) has the appointment of, or the application to a court for the appointment of, a liquidator, provisional liquidator, administrator, administrative receiver, or receiver; (c) enters into or applies for (or calls meetings of members or creditors with a view to) one or more of a moratorium, winding up, administration, liquidation (of any kind, including provisional), or composition or arrangement with creditors; or (d) has any of its property subjected to one or more of the appointment of a receiver (of any kind), enforcement of security, distress, or execution of judgement, in each case to include similar events under the Applicable Law of other countries; in each case to include similar events under the Applicable Law of other countries;
“Parties” means collectively SmartCom and Customer and “Party” shall be construed as the context requires;
“Platform” means SmartCom’s computer infrastructure used to provide the Training Services;
“SOW” means the statement of work in respect of the Training Services provided to Customer by SmartCom;
“SmartCom Technology” means all proprietary technology belonging to or used by SmartCom and its Affiliates (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) which is made available to Customer under an SOW, order or is otherwise used by SmartCom to provide the SmartCom software as a service offering and the Training Services; and
“Third Party” means a person or entity other than SmartCom and Customer.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other corporate body, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Training Services
2.1 The performance of the Training Services is subject to any assumptions and to the provision by the Customer of any information, resources, equipment or assistance referred to in the SOW. SmartCom shall not be liable for any failure to perform the Training Services in accordance with the SOW resulting from a failure of the Customer to satisfy or meet an applicable assumption. For the avoidance of doubt, in such case Customer’s payment obligation under Section 3 shall not be affected and shall remain in full force and effect.
2.2 SmartCom may sub-contract the performance of parts of the Training Services to third parties as SmartCom deems necessary. SmartCom will be responsible for the performance of the Training Services by such third parties.
2.3 SmartCom warrants that the Training Services will be performed in a workmanlike and professional manner. In the event of a breach of this warranty, Customer’s exclusive remedy and SmartCom’s entire liability will be the reperformance of the Training Services at no additional cost to Customer. If SmartCom is unable to reperform the Training Services as warranted, Customer will be entitled to recover the relevant Fees paid to SmartCom. Any claim for breach of SmartCom’s warranty hereunder must be made by notice to SmartCom within five (5) days following the date of completion of the Training Services with respect to which the claim is made.
2.4 SmartCom shall use reasonable endeavors to meet any timescales set out in the SOW however the Customer acknowledges that all such timescales are estimates and are not guaranteed.
3. Fees and Payment
3.1 The Customer shall pay to SmartCom all Fees, expenses and other charges set out in or calculated in accordance with this Agreement. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, withholding tax and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Sales Taxes”). Customer shall be responsible for and bear Sales Taxes associated with its purchase of, payment for, access to or use of the Training Services. Sales Taxes shall not be deducted from the payments to SmartCom, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, SmartCom receives and retains (free from any tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer claims tax exempt status for amounts due under this Agreement, it shall provide SmartCom with a valid tax exemption certificate (authorized by the applicable governmental authority) to avoid application of Sales Taxes to Customer’s invoice. Each Party is responsible for and shall bear Sales Taxes imposed on its net income. Customer hereby confirms that SmartCom can rely on the billing information set forth in the SOW that Customer places directly with SmartCom (or as subsequently notified by Customer in writing), as being the place of supply for the assessment of Sales Taxes. Customer shall notify SmartCom in writing of any changes to the billing information set out in the SOW and shall be responsible and liable for any delay or error in such notification. The Parties’ obligations under this 3.1 shall survive the termination or expiration of this Agreement.
3.2 Fees, expenses and other charges shall be invoiced monthly in arrears and the Customer shall pay the same within thirty (30) days of the date of the invoice.
3.3 Unless otherwise specified in the SOW, all Fees, expenses and other charges specified in the SOW are estimates and the Customer will be charged the actual sums incurred on a time and materials basis.
3.4 Without prejudice to any right or remedy SmartCom may have if the Customer fails to pay any sums due under this Agreement within thirty (30) days, SmartCom reserves the right to: (i) charge Customer interest in respect of the late payment of any sums due (before as well as after judgement) at the higher of: the rate of 8% per annum or the highest rate as permitted by Applicable Law, from the due date thereof until payment; and/ or (ii) suspend the Training Services until full payment has been received by SmartCom. Further, Customer shall pay any costs of collection including attorneys’ fees in the event that SmartCom incurs costs in recovering any sums due under this Agreement.
3.5 SmartCom reviews its Fee rates annually. Unless otherwise specified in the SOW, any Fee rates specified in the SOW shall be deemed to be varied accordingly with effect from 1 January of the following year.
3.6 Failure by Customer to make payment of any invoice more than 30 days following its date will be considered a material breach of this Agreement and SmartCom will have no obligation to perform further Training Services hereunder until paid.
3.7 If Customer, acting on a bona fide basis, disputes any invoice issued by SmartCom under this Agreement, Customer shall notify SmartCom within seven (7) days of the date of the relevant invoice. SmartCom will promptly work to reconcile any bona fide disputes. Customer is obligated to pay all non-disputed amounts when due regardless of whether an invoice contains disputed Fees and/or expenses. If Customer does not dispute an invoice within seven (7) days of the date of such invoice, Customer forfeits any further right to dispute such invoice.
4.1 In this agreement “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information;
4.2 Customer agrees that the Content, Platform, Training Services and SmartCom Technology constitute Confidential Information belonging to SmartCom. The Receiving Party agrees to treat as Confidential Information, the aforementioned, and the business and marketing plans, technology and technical information, product plans and designs, and business processes of the Disclosing Party. Confidential Information shall not include any information that is in the public domain, already known by the Receiving Party, or is required to be disclosed by law or any securities exchange or regulatory or governmental body.
4.3 The Receiving Party agrees on behalf of itself and its Affiliates that it may only disclose the Confidential Information which it receives from the Disclosing Party to such of its Affiliates, officers, employees, contractors and agents as need to know for purposes consistent with the Training Services. The Receiving Party shall ensure that such Affiliates, officers, employees, contractors and agents are bound by equivalent obligations in respect of the Confidential Information to those set out hereunder and shall use its best efforts to ensure that they abide by such obligations.
4.4 If the Receiving Party is required by law, regulation or a court of competent jurisdiction to disclose Confidential Information of the Disclosing Party or the terms of this Agreement, the Receiving Party will give prompt written notice to the Disclosing Party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and cooperate with the Disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
4.5 The Receiving Party acknowledges that, as between the Parties, all Confidential Information it receives from the Disclosing Party, including all copies thereof in the Receiving Party’s possession or control, in any media, is proprietary to and exclusively owned by the Disclosing Party. Nothing in this Agreement grants the Receiving Party any right, title or interest in or to any of the Disclosing Party’s Confidential Information. The Receiving Party’s incorporation of the Disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
4.6 The Receiving Party acknowledges that any actual or threatened breach of this Section 4 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the Disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.
4.7 Notwithstanding this Section 4, SmartCom retains the right to develop, use and distribute works that are the same or substantially similar to the Training Services including those similar in function, structure, sequence or organization.
5. Intellectual Property Rights
5.1 Notwithstanding any other provision of this Agreement, all rights in any methodologies, routines, ideas, concepts, libraries, tools, know-how, processes or technologies created, adapted or used by SmartCom or its Affiliates in its business generally shall belong to SmartCom or its Affiliates.
5.2 SmartCom (and its licensors, where applicable) shall own all right, title and interest to the SmartCom Technology, the Training Services, the Platform, the Content and the support for the Training Services, including to any and all enhancements, modifications, extensions and derivative works thereof, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Training Services. This Agreement does not convey to Customer any rights of ownership in or related to the SmartCom Technology, the Training Services, the Platform, the Content and the support for the Training Services or to any other Intellectual Property Rights owned, developed or created pursuant to Training Services, or used by SmartCom hereunder. Customer is granted a nonexclusive, non-transferable, revocable, limited license to access and use the Training Services, the Platform and the Content in accordance with these Conditions. All other uses are expressly prohibited.
5.3 The SmartCom name, the SmartCom logo, and the product names associated with the SmartCom Technology, the Content and the Training Services are trademarks of SmartCom, and no right or license is granted to use them.
6.1 Customer will not (i) make the Content, Platform, Training Services and/or SmartCom Technology available to anyone other than authorised internal users; (ii) sell, resell, transfer, rent, lease, copy, replicate and/or reverse-engineer the Content, Platform, Training Services and/or SmartCom Technology; (iii) use the Content, Platform, Training Services and/or SmartCom Technology to store or transmit infringing, obscene, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (iv) use the Content, Platform, Training Services and/or SmartCom Technology in violation of applicable law; (v) use the Content, Platform, Training Services and/or SmartCom Technology to store or transmit any automatic restraint, viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs that interfere with the provision of the Services and/or Platform; (vi) interfere with, adversely impact, or disrupt the integrity or performance of the Content, Platform, Training Services and/or SmartCom Technology or any data contained therein; (vii) attempt to gain unauthorized access to the Content, Platform, Training Services and/or SmartCom Technology or their related systems or networks; or (viii) access the Content, Platform, Training Services and/or SmartCom Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Upon the occurrence of any of the events listed above, SmartCom may suspend the Customer’s access to the Content, Platform, Training Services and/or SmartCom Technology.
7.1 EXCEPT FOR DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, SMARTCOM’S (OR IT’S RESPECTIVE AFFILIATES) TOTAL, CUMULATIVE LIABILITY (ARISING OUT OF OR RELATED TO THE SOW, PLATFORM ACCESS, SMARTCOM TECHNOLOGY, CONTENT OR THE TRAINING SERVICES PROVIDED THEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE TRAINING SERVICE(S) UNDER THE RESPECTIVE SOW GIVING RISE TO THE CLAIM.
7.2 UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL SMARTCOM (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
7.3 Notwithstanding Section 7.2, each Party shall at all times use all reasonable endeavors to mitigate any costs, losses or expenses that may arise out of this Agreement, and each Party shall only be liable to the extent that any liabilities, losses, claims, charges, costs, demands, proceedings, damages and expenses (including legal and other professional fees and expenses) have not arisen out of the negligence, wrongful acts or omissions, willful acts or omissions or breach of the Agreement by the other Party.
7.4 SmartCom agrees to keep in full force and effect during the term of the Agreement with reputable insurers: (i) public liability insurance with a limit of at least GBP 10 million per occurrence; (ii) product liability insurance with a limit of at least GBP 10 million per occurrence and annual aggregate; (iii) professional indemnity and cyber insurance with a limit of at least GBP 5 million per occurrence and annual aggregate; and (iv) employer’s liability insurance with a limit of no less than the statutory requirements.
8.1 Except for the express representations and warranties stated in this Agreement, SmartCom: (a) makes no additional representation or warranty of any kind – whether express, implied in fact or by operation of law, or statutory — as to any matter whatsoever; (b) disclaims all implied warranties and conditions, including but not limited to merchantability, fitness for a particular purpose, and title; and (c) does not warrant that the Content, Platform, Training Services and/or SmartCom Technology are or will be error-free, and Customer has no right no right to make or pass on any representation or warranty on behalf of SmartCom to any Third Party.
9. Data Protection
9.1 Each Party shall comply with Privacy Laws. To the extent that Customer passes SmartCom personal data in order to administer the Training Services, such personal data shall be handled in accordance with the Privacy and where applicable the Collection Notice https://www.smartcommunications.com/australian-collection-notice/.
10.1 This Agreement will terminate upon completion of the Training Services unless terminated earlier in accordance with this Section 10.
10.2 This Agreement may be terminated: (a) immediately in writing by a Party in the case of a material breach by the other Party unless such a breach is reasonably remediable and the Party in breach fails to remedy that breach within thirty (30) days of that Party being notified in writing of the breach; (b) by a Party immediately, upon the occurrence of an Insolvency Event in respect of the other Party; or (c) in accordance with the terms of the applicable SOW as relevant.
10.3 Where the Customer cancels or postpones Training Services, SmartCom reserves the right to charge a fee to the Customer to cover costs reasonably incurred by SmartCom as a result of such cancellation or postponement. Such fees shall be set out in a SOW or otherwise notified to Customer.
10.4 If this Agreement expires or is terminated for any reason: (a) SmartCom shall invoice the Customer and the Customer shall pay in accordance with Section 3 all Fees, expenses and other charges incurred but not previously invoiced under this Agreement and all costs necessarily or unavoidable incurred by SmartCom as a result of the termination by Customer as of, the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive together with any other rights or remedies either Party may be entitled to hereunder or at law or in equity; (c) SmartCom’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except for any such services that are expressly to be provided following the expiration or termination of this Agreement; and (d) the Parties’ rights and obligations under Sections 3 (Fees), 4 (Confidentiality), 6 (Restrictions); 7 (Liability),8 (Disclaimer), 10.4 (Post-Termination Obligations), 11 (General) and 12 (Governing Law and Venue) will survive termination of this Agreement.
11.1 The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set out in this Agreement, nothing in this Agreement, expressed or implied is intended to give rise to any third-party beneficiary relationship.
11.2 Any notice or other document given by either Party to the other hereunder shall be in writing and sent to the address of the recipient set out hereunder (or such other address as that Party may advise by notice) and marked for the attention of the General Counsel. Any such notice (except notice of termination issued pursuant to Section 10 which shall either be delivered personally or by recorded delivery first class pre-paid mail only) may be delivered personally, by electronic mail (sent to the e-mail address supplied on request) or by first class pre-paid mail and shall be deemed to have been served if personally, when delivered, if by first class mail, three (3) Working Days after mailing, if by recorded delivery first class pre-paid mail, when signed for by the recipient and if by facsimile transmission or electronic mail the first Working Day after transmission.
11.3 Neither Party may assign or transfer the whole or any part of this Agreement without the prior written consent of the other Party.
11.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any Force Majeure Event, the affected Party’s non-performance will be excused to the extent it is affected by the Force Majeure Event and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event.
11.5 Export Control. The Customer acknowledges and shall comply with all applicable economic sanctions, export controls, and other restrictive trade measures imposed by the United Kingdom, European Union, and United States including, without limitation, the U.S. Export Administration Regulations (“EAR”), the U.S. International Traffic in Arms Regulations (“ITAR”), the economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), the laws and regulations enforced by the United Kingdom’s Export Control Office (“ECO”) and Office of Financial Sanctions Implementation (“OFSI”), and any other laws of similar effect applicable in the European Union or other jurisdictions where Customer operates (collectively “Export Control Laws”).
11.6 Anti-Corruption. In connection with the services performed under this Agreement and Customer’s use of SmartCom’s Training Services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
11.7 Customer agrees to refrain from the solicitation, employment or hire, directly or indirectly, without SmartCom’s prior written consent, of any of SmartCom’s employees during the term of this Agreement and for one year thereafter the date of its termination. Notwithstanding Section 6, in the event Customer in any way solicits, employs or hires any of SmartCom’s employees within this period, Customer agrees to pay SmartCom, in consideration of SmartCom’s lost business and the expense of training and recruiting qualified personnel having the requisite unique and technical expertise to service SmartCom’s clients, as liquidated damages, an amount equal to 18 months’ salary of that employee at SmartCom’s then current rate of compensation for that employee’s position.
11.8 Entire Agreement. This Agreement is the final, complete, and exclusive expression of the agreement between the Parties regarding the Training Services detailed in the SOW. This Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Training Services under the SOW), representations, proposals, understandings, undertakings, and negotiations with respect to the subject-matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. This Agreement may be changed only by a written agreement signed by an authorized agent of both Parties. This Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if SmartCom accepts or does not otherwise reject the purchase order or other ordering document.
11.9 Other than expressly set out in this Agreement, a person who is not a party to the SOW will have no rights to enforce any part of this Agreement. Where the Training Services are provided by SmartCom from the United Kingdom other than as expressly set out in this Agreement, a person who is not a party to the SOW will have no rights under the Contracts (Rights of Third Parties) Act 1999.
11.10 Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Training Services unless the prior written consent of the other Party has been obtained, provided, however, that SmartCom may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the Training Services.
11.11 If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
11.12 Attorneys’ Fees. If any action, at law or in equity, suit, arbitration or other proceeding is brought for the enforcement of the Agreement, or because of an alleged dispute, breach or default in connection with any of the provisions of the Agreement (collectively, “Dispute”), the prevailing party in such Dispute shall be entitled to recover reasonable attorneys’ fees and other costs incurred in such Dispute, including any appeal of such Dispute in addition to any other relief to which the prevailing party may be entitled.
12.1 Where the SmartCom entity named in the SOW is located in the United Kingdom, this Agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English courts and any Dispute shall be governed by and construed in accordance with the laws of the England and Wales; where the SmartCom entity named in the SOW is located in the United States of America, the Agreement shall be governed by and construed in accordance with the laws of Virginia and any Dispute shall be subject to the exclusive jurisdiction of a court of competent jurisdiction in Norfolk, Virginia; and where the SmartCom entity named in the SOW is located in Australia, the Agreement shall be governed by and construed in accordance with the laws of New South Wales and a Dispute shall be subject to the exclusive jurisdiction of a court of competent jurisdiction in New South Wales.