PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING TOTARA SERVICES. BY CLICKING ON THE “I ACCEPT” CHECKBOX, OR BY USING OR PURCHASING TOTARA SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY, AND BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT OR ARE NOT AUTHORISED TO ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT PURCHASE OR ACCESS OR USE TOTARA SERVICES.

This Totara Cloud Terms of Service (“Agreement”) is between Totara Learning as defined below (“we” or “us”) and the purchaser or recipient of Totara Services that hereby accepts the terms of this Agreement (“Customer”, “you” or “your”).  The commencement date of this Agreement (“Commencement Date”) is the earlier of the date that Customer accepts this Agreement or the date that Customer first uses Totara Services. 

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context otherwise requires:

Acceptable Use Policy means the acceptable use policy governing the Customer’s and the Users’ use of the Totara Services, as may be modified by Totara Learning from time to time, a current copy of which is available online at https://www.totaralearning.com/acceptable-use-policy

Business Day means any day other than a Saturday, Sunday, or a statutory public holiday in either New Zealand, the United States, or the United Kingdom, as the case may be, depending upon the location of the Totara Learning contracting entity.

Customer Material means any data, document, software, material, text, graphics, multimedia, video, audio, learning material, course, catalogue, record, registration data, Third Party Property or other information or content provided by the Customer or Users to Totara Learning in connection with use of Totara Services hereunder.

Designated Contacts means the individuals designated by you during the purchase process or thereafter and agreed to by us who are authorised to contact our customer support staff.

Documentation means all documentation provided by Totara Learning in conjunction with the Totara Services, which includes, but is not limited to:

  • manuals, guides and other written material in print or electronic book format;
  • videos;
  • training slides and material; and
  • public or private online documentation in the form of wikis, forums or blogs.

Force Majeure Event means an event or occurrence which a party could not have reasonably foreseen and taken reasonable measures to prevent, but does not include strikes, lock-outs or any other form of labour dispute or delay caused by contractual or labour relations between the parties and any of their employees, agents, sub-contractors or suppliers, or inability to perform due to lack of available funds.

Intellectual Property Rights means all rights in any jurisdiction in patents, trademarks, trade secrets, copyrights, and other rights of a similar nature, including applications and/or registrations in connection with the foregoing and all other rights with respect thereto anywhere in the world, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions and renewals of any such grant, registration and/or right.

Subscription Fees has the meaning set forth in clause 3.1.

Subscription Period means either three (3) months or twelve (12) months, depending upon the fee and service plan selected by Customer when subscribing to the Totara Services.

Taxes means any form of taxation, levy, duty, customs fee, charge or impost of whatever nature, but excluding any taxes based solely on the net income of Totara Learning.

Term means the Initial Term and all Renewal Terms (as defined in clause 2), unless the Agreement is earlier terminated in accordance with the provisions of clause 11.

Third Party Property means any material embodying Intellectual Property Rights which belong to a third party.

Totara Learning means:

  • if your primary place of business is in North or South America, then Totara Learning, Inc., with a primary place of business at PO Box 7775 #95930, San Francisco, CA 94120, USA
  • if your primary place of business is in Europe, the Middle East, or Africa, then Totara Learning (Europe), Ltd., with a primary place of business at Suite 417 4th Floor, Tower Point, 44 North Road, Brighton BN1 1YR, United Kingdom
  • if your primary place of business is in Australia, then Totara Learning (Australia) Ltd., with a primary place of business at GPO Box 4836, Sydney, NSW 2001, Australia. 
  • if your primary place of business is in any other location, then Totara Learning Solutions Ltd., with a primary place of business at Level 2, 186 Willis Street, Te Aro, Wellington, Wellington 6011, New Zealand.

Totara Services means the services set forth in clause 4.1.

User means a person who accesses the Totara Services provided to Customer under this Agreement.

1.2 In this Agreement, unless the context otherwise requires:

  • time is of the essence, in all respects;
  • a reference to a “person” includes an individual, firm, company, corporation or unincorporated body of persons, or any state or government or any agency thereof (in each case, whether or not having separate legal personality), and a reference to a “company” includes a person; and
  • the singular includes the plural and vice versa, where the context requires.

2. TERM

2.1 Initial Term:  The Agreement will be effective on the Commencement Date and will continue for the Subscription Period (the “Initial Term”).

2.2 Automatic Renewal: Upon expiration of the Initial Term and each subsequent Renewal Term, this Agreement shall automatically renew for a successive additional Subscription Period (each, a “Renewal Term”) provided that neither party has given notice at least 30 days before the end of the then-current Term that such party does not wish to renew the Agreement.

3. FEES

3.1 Fees: You agree to pay us the applicable fees for Totara Services (“Subscription Fees”).  We will invoice in each Subscription Period for the Subscription Fees, and you agree to pay each invoice within 30 days of the date thereof.  If you elect to pay fees with a credit card, debit card, or similar payment method, then you authorize Totara Learning to charge all such fees to the payment method you specify, and Totara Learning may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.  If you elect to use our auto-renewal option for paying recurring Subscription Fees, then you authorize Totara Learning to periodically charge the payment method you have specified, on a going-forward basis and until cancellation of either the recurring payments or your subscription, all accrued sums on or before the payment due date for the accrued sums.  If you update or cancel any authorized recurring payment, it may take up to 15 business days for the update or cancellation to take effect.

3.2 Additional Fees: Fees for additional services not included under your subscription plan and expenses incurred on your behalf will be invoiced monthly at the end of the month in which such services are provided or expenses incurred. You agree to pay such invoices by the 20th of the month following the date of the invoice.

3.3 Costs: If requested by us, you will reimburse us for all costs (including reasonable legal fees) associated with collecting overdue or dishonoured payments by you that are more than 30 days overdue.

3.4 Taxes: Subscription Fees are exclusive of any Taxes.  Customer will pay to Totara Learning an amount equal to any Taxes arising from or relating to this Agreement or any payment made thereunder which are paid by or are payable by Totara Learning. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due to Totara Learning, then the sum payable to Totara Learning will be increased by the amount necessary so that Totara Learning receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

4. TOTARA SERVICES

4.1 Totara Services: Subject to the terms and conditions of this Agreement, Totara Learning grants you permission during the Term to allow your personnel to access and use (i) those features of the hosted learning management system made available to you by Totara Learning at the levels for which you have purchased and paid all applicable fees, (ii) the Subscriber Portal, and (iii) customer support pursuant to our customer support terms as set forth from time to time, available at http://www.totaralms.com/solutions/totara-cloud/support-terms, (the “Totara Services”), in each case in accordance with all applicable usage levels, and for their intended purposes and consistent with the restrictions set forth in this Agreement and any applicable documentation.

4.2 Initial Setup and Configuration: Subject to your payment of a one-time setup fee, Totara Learning will assist you with the initial setup and configuration of the Services by providing up to ten total hours of remote technical assistance during the first 60 consecutive days following the Commencement Date.  Totara Learning does not represent or warrant that the amount of technical assistance provided to you pursuant to this clause will be sufficient to meet your needs or achieve any particular result.

4.3 Updates and Revisions to Services:  Totara Learning will have sole control over, and may at any time make updates, upgrades, and other changes to, the configuration, appearance, content, and functionality of the Totara Services.

4.4 Unavailability of Services: Totara Learning will use reasonable endeavours to give Customer at least 72 hours’ notice of any times at which the Totara Services are expected to be unavailable to Customer and to Users as a result of routine maintenance or administration work, however there may be situations in which changes are required and 72 hours’ notice cannot be given.  Totara Learning will minimise the impact on you as far as is reasonably practicable.

4.5 Customer as end-user acknowledgment:  You acknowledge and agree that we are providing the Totara Services to Customer and its Users as end-users and neither Customer nor its Users will provide any third party with the Totara Services, or the benefit (whether direct or indirect) of the Totara Services, whether by way of resupply, resale or otherwise.  You acknowledge and agree that use of the Totara Service, including by Users, is subject to Totara Learning’s Privacy Policy, available online at https://www.totaralearning.com/privacy-policy.

5. RESTRICTIONS

5.1 Suspension of Services: Totara Learning may suspend the Totara Services and/or make any part of the Totara Services unavailable to the Customer and Users if:

  • You or your Users breach the Acceptable Use Policy;
  • A third party alleges that any part of the Totara Services breaches their Intellectual Property Rights;
  • You fail to pay any amount when due to Totara Learning;
  • You request suspension; or
  • You exceed the service parameters or features of the service plan for which you are paying Subscription Fees.

The suspension will continue until the issue causing the suspension or unavailability of the Totara Services is resolved to the satisfaction of Totara Learning. Suspension or unavailability of the Totara Services does not constitute the giving of notice to terminate this Agreement and fees continue to accrue until the Agreement expires pursuant to clause 2 or is terminated pursuant to clause 11.

5.2 Removal of Inappropriate Material: Totara Learning may remove Customer Material from the Totara Services immediately and without notice if Totara Learning reasonably suspects such Customer Material may violate the Acceptable Use Policy. Totara Learning shall notify the Customer (although not necessarily prior to removal of such Customer Material) if it becomes aware of any allegation that Customer Material violates the Acceptable Use Policy.

5.3 Customer Responsibilities: Customer shall at all times (i) be responsible and liable for all Customer Material used, transmitted and stored in connection with the Totara Services, and shall ensure that the Customer Material complies with, and that Customer’s and Users’ use of the Totara Services complies with, the Acceptable Use Policy; (ii) fulfil Customer’s responsibilities set forth in clause 8; (iii) refrain from engaging in any activities that are intended to gain, or result in gaining, unauthorised access to any servers operated by or for Totara Learning; and (iv) comply with all applicable domestic and international laws, rules and regulations (without limitation, laws governing data protection and privacy) as they relate to Customer and Customers’ Users in connection with this Agreement, and without limiting the generality of the foregoing, Customer shall ensure full compliance with all data protection initiatives and similar laws relating to the collection, use and transmission of data

6. COPYRIGHTED MATERIAL

6.1 Policy on Infringing Content: We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended) and will terminate the accounts of Customers or Users that are determined by Totara Learning to be repeat infringers.

6.2 Notification of Infringing Content: If you have an intellectual property rights-related complaint about material posted on the Totara Services, you may contact our designated agent for copyright compliance at the following address:

Totara Learning

ATTN: Legal Department (Copyright Notification)

Catalyst House

Te Aro

Wellington PO Box 24552

Wellington 6011 New Zealand

Any notice alleging that materials hosted by or distributed through the Totara Service infringe intellectual property rights must include the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
  • a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
  • a description of the material that you claim is infringing and where it is located on the Service;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the use of those materials on the Totara Service is not authorized by the copyright owner, its agent, or the law; and
  • a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

7. SUPPORT

7.1 Contacting Customer Support:  If you are unable to resolve an issue or question about the Totara Services using the Subscriber Portal, your Designated Contacts may contact one of our customer support representatives.  Our customer support representatives can provide support only in the English language and only to your Designated Contacts.

7.2 Exclusions from Support Program:  We will not provide support for problems external to the Totara Services, including:

  • use of the Totara Services in combination with any other equipment, software, or services not provided by Totara Learning;
  • any use of the Totara Services in a manner not intended or documented;
  • input of incompatible or corrupted data or information into the Totara Services by the Customer;
  • any breach of this Agreement by the Customer, Designated Contacts or Users; and
  • your own equipment used to access the Totara Services.

7.3 Services due to excluded clauses: If we agree to undertake any maintenance or services required to fix an issue caused by (in our sole opinion) one or more of the causes specified in clause 7.2 these will be billed to you on a time-and-materials basis in accordance with our then current rates. We are under no obligation to agree to undertake such services at any time.

8. YOUR RESPONSIBILITIES

8.1 Provision of Information: In connection with the Totara Services, you agree to provide Totara Learning with such information, permissions and/or licences as Totara Learning may reasonably request in order to efficiently and effectively provide the Totara Services.  

8.2 Security of Information: The Customer and the Users shall keep secure any identification, passwords and other confidential information relating to the Totara Services and shall notify Totara Learning immediately of any known or suspected breach of security or unauthorised use of the Customer’s account, including loss, theft or unauthorised disclosure of any passwords or other security information.

8.3 Designation of Designated Contacts:  You will designate through the Service the individuals who will serve as your Designated Contacts for receiving support.  For continuity purposes, we request that you retain the same Designated Contacts for at least 90 days, unless they cease to be part of your organisation.

8.4 Training: In order to maximise the benefit of the services we provide and to help speed case resolution, all Designated Contacts and Users shall complete basic training on the use of the Totara Services using the self-paced courses available at http://academy.totaralms.com. You are responsible for maintaining proper training of the Designated Contacts and all other Users in the operation and use of the Totara Services.  In the event that a Designated Contact contacts a Totara Learning customer support representative with a problem that is covered in the self-paced training courses provided by Totara Learning, we may bill the costs of such customer support services to you on a time-and-materials basis in accordance with our then current rates.

9. LICENCE AND INTELLECTUAL PROPERTY OWNERSHIP

9.1 Licence: Customer hereby grants to Totara Learning a non-exclusive, transferable license during the Term to access, copy, distribute, modify, and otherwise use the Customer Material as reasonably necessary to provide the Totara Services to you and your Users.  To the extent that Customer Material includes Third Party Property, Customer represents that Customer has the authority with respect to the Third Party Property to grant the license granted to Totara Learning in this clause.

9.2 Totara Intellectual Property Rights: No right or licence, express or implied, is granted to the Customer under this Agreement for the use of any Totara Learning trade mark, logo, service mark or other Intellectual Property Rights.

9.3 Pre Existing Intellectual Property: All Intellectual Property Rights that are owned by, or are proprietary to, a party to this Agreement at the Commencement Date of this Agreement, shall at all times remain owned by that party exclusively, and nothing herein shall be deemed or interpreted to transfer ownership of any Intellectual Property Rights between you and us.

9.4 Open Source Software:  Customer acknowledges that in providing the Totara Services, Totara Learning makes use of certain software licensed by the applicable author(s) under the terms of the GNU General Public License and other open source software licenses, and that the terms of the applicable licenses govern the use of such software.  Nothing in this Agreement shall be deemed or interpreted to conflict with, contradict, restrict, or otherwise diminish any rights Customer may have under the applicable open source software licenses.

10. WARRANTY DISCLAIMER

10.1 The Totara Services are provided on an “as is” and “as available” basis.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES AND REPRESENTATIONS NOT EXPRESSLY STATED IN THIS AGREEMENT ARE EXCLUDED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR GUARANTEE THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, MEET YOUR NEEDS, OR ACHIEVE ANY PARTICULAR RESULT.

11. TERMINATION

11.1 Termination for breach:  A party shall be in default of this Agreement where:

  • it breaches, or fails to properly or promptly perform, any of its obligations (other than payment obligations or obligations excused due to a Force Majeure Event pursuant to clause 15) under this Agreement, and fails to remedy that failure within 20 Business Days (inclusive of the date of receipt) after receiving written notice from the other party requiring the failure to be remedied;
  • it breaches a material obligation under this Agreement which is incapable of remedy;
  • it assigns, transfers or otherwise disposes of any right, interest, obligation or liability in contravention of this Agreement;
  • a party fails to perform any obligation under this Agreement which is suspended due to a Force Majeure Event pursuant to clause 15 for an aggregate of 60 Business Days or more in any six month period;
  • circumstances arise that reasonably indicate a significant risk that such party is or will become unable to pay its debts as they fall due, including but not limited to the appointment of a receiver, administrator, liquidator or similar officer, or the entering into an arrangement or scheme with creditors, or like event; or
  • any monies due to be paid by the party pursuant to this Agreement are more than 30 days overdue.

11.2 Right to terminate on default:  The non-defaulting party may terminate this Agreement immediately by written notice to the other party if such other party is in default as specified in clause 11.1.

11.3 Termination or limitation of Totara Services for abuse of support: At our sole discretion, we may terminate this Agreement, or limit the availability of the Totara Services, upon written notice to you, if, in our reasonable judgment, you are abusing the customer support system. By way of example, and not by way of limitation, such abuse may include excessive requests for assistance unrelated to errors in the Totara Services or lack of cooperation with the reasonable requests of our personnel.

12. EFFECT OF TERMINATION: 

12.1 Effect of Termination by Us:  If we terminate this Agreement because you are in default, we will retain any Subscription Fees paid.

12.2 Effect of Termination by You: If you terminate this Agreement because we are in default, our sole and exclusive obligation will be to promptly refund that portion of the Subscription Fees actually paid by you that is proportional to the percentage of the Term remaining at the time termination is effective.

12.3 Effect of Termination on use of Totara Services: The termination of this Agreement will result in your access to the Totara Services being denied. In such circumstances, Totara Learning will promptly return any Customer Materials and/or Third Party Property supplied by you and will provide you, in electronic form, with a snapshot copy of your then most current Customer data maintained in connection with the Totara Services.

12.4 Obligations shall cease: Upon termination of this Agreement all further obligations of you and us under this Agreement will immediately cease, except that:

  • neither party will be prevented from pursuing other remedies available including injunctive relief;
  • any rights and remedies of either party in relation to any breach of this Agreement occurring prior to the date of termination, or any rights of or payments due to either party which have accrued prior to, or which arise out of or in connection with such termination, will not be prejudiced; and
  • obligations arising under clauses 12, 13, and 16 through 18 of this Agreement will survive termination of this Agreement.

13. INDEMNITY

13.1 You shall indemnify, defend and hold us and our officers, directors, agents and employees harmless from and against all claims, suits, demands, actions, proceedings, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all third-party claims against us arising from or relating to: 

  • any breach of a representation, warranty, acts or omission made by you; and
  • any action or inaction by you or any of your contractors, Designated Contacts, Users, agents or employees which caused or is alleged to have caused damage to the person or property of a third party, including without limitation, third party computer equipment;
  • any claim that any Customer Material infringes, misappropriates or violates any Intellectual Property or other proprietary rights of any third party;
  • any claim that Customer’s or Users’ use of the Totara Services, or the placement or transmission of any Customer Material on the internet violates any applicable law, regulation or other legal requirement relating to such usage or this Agreement; and
  • any failure of Customer or Users to comply with the Acceptable Use Policy.

14. LIMITATIONS OF LIABILITY

14.1 Mitigation:  Each of the parties must take reasonable steps to mitigate any claim for loss or damage it may make against the other under or arising out of this Agreement.

14.2 CAP:  IN NO EVENT SHALL TOTARA LEARNING BE LIABLE TO YOU FOR ANY DIRECT LOSS IN RELATION TO A CLAIM OR SERIES OF RELATED CLAIMS, ON ANY THEORY, ARISING UNDER THIS AGREEMENT OR RELATING THERETO, IN AN AMOUNT EXCEEDING THE FEES, IF ANY, PAID OR PAYABLE BY YOU TO TOTARA LEARNING UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH LIABILITY.

14.3 EXCLUSIONS OF INDIRECT LOSSES:  IN NO EVENT SHALL TOTARA LEARNING BE LIABLE TO YOU FOR (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SPECIAL LOSSES OR DAMAGES OR (ii) ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OR LOSS OF ANTICIPATED SAVINGS ARISING OUT OF OR IN CONNECTION WITH A BREACH OF THIS AGREEMENT, EVEN IF THE TOTARA LEARNING HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

14.4 Nothing herein shall be deemed to exclude any liability in relation to death, personal injury or fraud that cannot be excluded pursuant to applicable law.

15. FORCE MAJEURE

15.1 Obligations suspended: Where either party is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligations under this Agreement  except for the payment of amounts due and payable hereunder, and:

  • that party gives the other party prompt written notice of the nature and expected duration of, and the obligations affected by, the Force Majeure Event; and
  • that party uses all commercially reasonable endeavours to:
  • mitigate the effects of the Force Majeure Event on that party’s performance of its obligations under this Agreement; and
  • resume performance of that party’s obligations under this Agreement as soon as reasonably practicable,
  • then such obligations are suspended so far as they are affected by the Force Majeure Event.

16. DISPUTE RESOLUTION.  The laws governing this Agreement, and the jurisdiction and processes for resolving disputes arising hereunder will depend on which Totara Learning entity is executing this Agreement, as follows:

16.1 If the Totara Learning entity bound by this Agreement is Totara Learning Solutions Ltd. (New Zealand), then this Agreement and all matters arising out of or relating to this Agreement, will be governed by the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement.  To the extent you are not subject to the jurisdiction of the courts of New Zealand, we agree that disputes arising under this Agreement will be resolved by binding arbitration in English in Wellington or Auckland, New Zealand, before a single arbitrator agreed on between us, or failing agreement within 5 Business Days of either party’s first suggestion for a suitable arbitrator, by the President for the time being of the New Zealand Law Society (or his or her nominee), in accordance with the provisions of the Arbitration Act 1996 other than the provisions of clauses 3(1)(a), 5(1)(a) and 7 of Schedule 2 to the Arbitration Act 1996, and any award rendered thereon by the arbitrator shall be final, and judgment thereon may be entered in any court of competent jurisdiction.

16.2 If the Totara Learning entity bound by this Agreement is Totara Learning Europe Ltd. (U.K.), then this Agreement and all matters arising out of or relating to this Agreement, will be governed by the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement.  To the extent you are not subject to the jurisdiction of the courts of England, we agree that disputes arising under this Agreement will be resolved by binding arbitration in English in London, before a single arbitrator, in accordance with the rules of the London Court of Arbitration, and any award rendered thereon by the arbitrator shall be final, and judgment thereon may be entered in any court of competent jurisdiction.

16.3 If the Totara Learning entity bound by this Agreement is Totara Learning, Inc. (U.S.), then this Agreement and all matters arising out of or relating to this Agreement, will be governed by the laws of the United States and the State of California, and the parties irrevocably submit to the exclusive jurisdiction of the courts located in the Northern District of California with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement.  To the extent you are not subject to the jurisdiction of such courts, we agree that disputes arising under this Agreement will be resolved by binding arbitration in English in California, before a single arbitrator, in accordance with the rules of the American Arbitration Association ("AAA"), and any award rendered thereon by the arbitrator shall be final, and judgment thereon may be entered in any court of competent jurisdiction.

17 NOTICES

17.1 Service: Every notice or other communication given under or in connection with this Agreement will be in writing and addressed to the relevant party and delivered, posted by pre-paid registered mail or sent by email to the address or email address of that party.  In the case of the Customer, that shall be the address or email address advised at the time Customer subscribed to the Totara Services, or such other address as may be notified to us from time to time.  Any notice to us shall be addressed to the address of the Totara Learning contracting entity or sent via email to that entity. For general enquiries please contact us using the form on our website.

17.2 Receipt: Every notice or other communication sent by prepaid letter will be deemed to have been received when delivered personally or three (3) days after it has been put into the post. In the case of electronic transmission by email, a notice or other communication will be deemed to have been received at the time specified in the email transmission unless returned as undeliverable or as containing any error.

18. GENERAL

18.1 Assignment: We may assign our rights or obligations under this Agreement, upon giving notice to you. You may only assign your rights or obligations under this Agreement with our prior written consent (which may be given or withheld in our absolute discretion).  Any change in control or of more than 50% shareholding in you (if you are a company) shall be deemed an assignment.

18.2 Compliance with laws:  Each party will, in performing its respective obligations under and in connection with this Agreement, comply with all relevant statutes and other laws.

18.3 Entire Agreement:  Subject to any amendment in accordance with clause 18.4, this Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Agreement and supersedes and cancels any previous agreement, understanding and arrangement relating thereto, whether written or oral. Any provision in any statute or other law that is inconsistent with this Agreement will not apply, to the extent that contracting out of that provision is permitted.

18.4 Modifications to the Agreement:  We may amend this Agreement on a going forward basis at any time by giving you notice of any proposed change and posting an amended version of the Agreement at https://www.totaralms.com/solutions/totara-cloud/terms-of-service. Modified terms become effective on the earlier of 30 days following Totara Learning’s publication of such modified terms or your use of the Service with actual knowledge of the modified terms.  If you do not accept the proposed amendments, you may terminate this Agreement by notice in writing at any time within the 30 days prior to the change coming into effect, and we will refund to you a pro-rated portion of the Subscription Fees actually paid by you that is proportional to the percentage of the Term remaining.  If we do not receive notice of termination from you prior to the change coming into effect, you will be deemed to have accepted the amended Agreement.  Disputes arising hereunder will be governed by the version of this Agreement in effect at the time such dispute arose.

18.5 Pay own costs:  Except as otherwise provided in this Agreement, each party will pay its own costs of, and incidental to, the negotiation, preparation, execution and enforcing, or attempting to enforce, this Agreement.

18.6 No waiver by action:  Any delay, failure or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or in connection with, this Agreement will not operate as a waiver of such right, power or remedy.

18.7 Waiver to be in writing:  The waiver of any breach of any provision of this Agreement will not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed.  A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.