Max's Group Inc. Learning Management System

Max’s Online Training Learning Management System User Agreement

Important! Pease read carefully. This is an undertaking. By clicking “I AGREE” on the preceding page, you accept and agree to be legally bound by all terms and conditions of this agreement. This End User License Agreement (the “Agreement”) is made, as of the date you click “I AGREE” (the “Effective Date”) between you (the “End User”) and Global Max Services Pte. Ltd. Regional Operating Headquarters located at Penthouse Floor Ecotech Land Plaza, 2305 Chino Roces Extension, Makati City. Before you are permitted to access or use any of Max’s Corporate Learning and Development’s (CLD) proprietary e-learning course materials and services (the “E-learning”), you will be asked to indicate whether you agree to be bound by the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement, click “CANCEL”, in which case you will not be given access to E-Learning.

1. E-Learning

a. General: E-learning includes: (i) the instructional modules, related courseware and quizzes under Max’s CLD that the End User selects during registration (the “Content”); and various learning management services delivered to End User, including: End User account set-up and management; and storage and retrieval of End User learning records, including test scores and Content progress information (the “LMS”).

b. Minimum Technical Requirements: Max’s CLD shall make E-Learning licensed hereunder available via a standard browser-based user interface to the LMS. E-Learning is delivered via hypertext transfer protocol (http) from the onlinetraining.maxschicken.com.ph domain. The minimum technical requirements (the “Minimum Technical Requirements”) for optimal program operation of E-Learning are set forth here. Max’s CLD is not responsible for any degraded performance due to End User’s failure to comply with the Minimum Technical Requirements.

c. Badges and Certification: E-Learning modules provided by Max’s CLD educates learners on Max’s Restaurant standards and developmental modules. Each module will allow the End User to earn a badge, as a symbol of completion of all requirements. Certificate of Completion can be formally requested from Max’s CLD. End User understands and agrees that the granting of badges is not a representation by Max’s CLD of End User’s competency regarding any particular subject matter, but merely indicates completion of a module and related testing.

2. License Grant and Restrictions

a. License: Subject to the terms and conditions of this Agreement, including, without limitation, payment of all fees hereunder when due, Max’s CLD hereby grants End User a limited, personal, nonexclusive, and nontransferable right and license to use and access (i) the Content, and (ii) to the extent necessary in connection with using and accessing the Content, the LMS, solely for the End User’s individual education and training purposes, during the period beginning on the Effective Date and ending one (1) year, six (6) months thereafter, depending on the curriculum licensed. For purposes of clarification, the parties agree that the End User license purchased hereunder entitles the End User alone to access just the Content module purchased, including courseware and associated quizzes for a period no longer than: - Onboarding Modules- one (1) year from the Effective Date - Management Team Training- six (six) months from the Effective Date - Support Units Training - six (six) months from the Effective Date - Optional Training - six (six) months from the Effective Date All license rights not expressly granted herein are reserved by Max’s CLD.

b. Terms of Use: End User acknowledges and agrees that it shall comply in all respects with any acceptable use policy or other terms and conditions of use made available via E-Learning (collectively, the “Terms”). In the event of any deviation by End User with such Terms, Max’s CLD reserves the right to suspend or terminate End User’s access to E-Learning, as Max’s CLD deems appropriate.

c. License Restrictions: End User acknowledges that all right, title, and interest in and to E-Learning including without limitation all intellectual property rights therein, shall remain with Max’s CLD and its licensors. End user alone may access E-Learning, and in no event may End User grant access to E-Learning to any third parties. End User may not lend, lease, sublicense, loan, rent, resell, publish, distribute or network any part of, or access to, E-Learning, and End User may not publish materials to the E-Learning catalog, other than as such functionality may be included as a feature of E-Learning, without Max’s CLD’s prior written consent, which consent may be withheld at Max’s CLD’s sole discretion. End User is strictly prohibited from using E-Learning for mass training or third party training purposes. Further, End User may not alter, modify, or adapt the courseware associated with E-Learning or related documentation. End User is expressly prohibited from reverse engineering, reverse compiling, disassembling or otherwise deriving the source code (other than HTML code that is readily accessible from the browser) for E-Learning or any portion thereof. End User is prohibited from copying, duplicating, or permitting others to copy or duplicate E-Learning or any module or other portion thereof, except that each End User may take notes of it for review purposes. Any such permitted copy must include all trademarks, copyright notices, restricted rights legends, proprietary markings, and the like exactly as they appear on the original and End User is not permitted to further duplicate or distribute that copy to anyone.

d. Authentication: Upon registering, End User shall create a unique username and password (the “Authentication”) to access E-Learning. End User is solely responsible for ensuring the confidentiality of its Authentication, and End User shall be liable for any consequences that may result from the disclosure of such Authentication.

3. Payments As of the Effective Date, the license fees set forth on Max’s CLD current price list (the “License Fees”) shall be due and payable to Max’s CLD by End User. All License Fee(s) hereunder are non-refundable, except to the extent expressly provided otherwise in this Agreement. All prices and payments in this Agreement are exclusive of all national, municipal or other governmental excise, sales, value-added, use, personal property and occupational taxes, excises, withholding obligations and other levies now in force or enacted in the future (collectively, “Taxes”). To the extent any Taxes become due and payable as a result of this Agreement, other than Taxes due on Max’s CLD net income, such Taxes shall be the responsibility of End User.

4. Confidentiality In connection with this Agreement, End User may have access to private and confidential information owned or controlled by Max’s CLD including without limitation the Content and information relating to equipment, apparatus, programs (including E-Learning and all related documentation), courseware, specifications, dining and kitchen standards, and other data. Similarly, Max’s CLD and its employees and agents may have access to private and confidential information owned or controlled by End User. All such information acquired by either party under this Agreement shall be and remain its owner’s exclusive property, and the receiving party shall keep, and if applicable shall obligate its employees, agents and contractors to keep, any and all such information confidential and shall not copy or disclose it to others without the owner’s prior written approval, and shall return all tangible copies of such information to the owner promptly upon request. Nothing herein shall limit either party’s use or dissemination of information not actually derived from the other party or information that has been or subsequently is made public by the owner or with the owner’s consent. Notwithstanding anything to the contrary in the foregoing, End User acknowledges and agrees that Max’s CLD may use non-personally identifiable aggregated data related to End User module test scores and overall usage of E-Learning.

5. Updates; Maintenance; Support

a. Updates: Max’s CLD expressly reserves the right to modify the Content and the LMS at any time in its sole discretion, including without limitation by modifying the Content to update such Content and for other purposes and upgrading and modifying the technology, functionality, and capabilities of the LMS. Any such modified Content or LMS made available hereunder shall be deemed “Content” or “LMS” for purposes of this Agreement.

b. Maintenance: Max’s CLD will use commercially reasonable efforts to make E-Learning continually available, except for scheduled maintenance and downtime. In an effort intended to ensure that scheduled maintenance and downtime has minimal impact on End Users, Max’s Corporate IT uses commercially reasonable efforts to perform its scheduled maintenance and downtime during a maintenance window which occurs everyday from 11:00 pm to 7:00 am (GMT+8) (the “Maintenance Window”). End User access to E-Learning may be unavailable during scheduled maintenance and downtime. End User acknowledges and agrees that access to the Internet is also subject to unexpected outages due to failure of equipment or services of Internet service providers that are not a party to this Agreement.

c. Max’s CLD or its third-party provider shall use commercially reasonable efforts to provide End User with technical support services available via telephone and email during operating hours of 8:00am – 6:00pm, Mondays-Fridays (the “Technical Support”). End User will receive up to sixty (60) minutes of Technical Support during the Term at no additional charge. The number of minutes of Technical Support used by End User may be tracked and documented by Max’s CLD or its third party provider on a quarterly basis. Technical Support used in excess of sixty (60) minutes is available at Max’s CLD then-current standard support rates.

6. Disclaimer of Warranty E-LEARNING, INCLUDING ALL CONTENT, IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Max’s CLD AND ITS THIRD-PARTY SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEM INTEGRATION, DATA ACCURACY, AND NON-INFRINGEMENT. THE CONTENT AND OTHER MATERIALS PROVIDED AS PART OF E-LEARNING ARE FOR GENERAL, INFORMATION PURPOSES ONLY AND ARE NOT TAILORED TO SPECIFIC FACTUAL CIRCUMSTANCES. WHILE Max’s CLD USES REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE CONTENT AND INFORMATION AS PART OF THE E-LEARNING, MAX'S ONLINE TRAINING MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION AVAILABLE AS PART OF E-LEARNING. END USER IS RESPONSIBLE FOR VERIFYING THAT THE GENERAL CONTENT AND INFORMATION PROVIDED IS APPROPRIATE FOR ANY SPECIFIC FACTUAL SITUATION BEFORE RELYING ON IT. Max’s CLD MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF E-LEARNING WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. Max’s CLD IS NOT LIABLE FOR DAMAGES INCURRED BY END USER IF END USER FAILS TO TAKE ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT OR OTHER MATERIAL OBTAINED FROM E-LEARNING IS FREE OF VIRUSES AND OTHER POTENTIALLY HARMFUL DEVICES.

7. Limitation of Liability IN NO EVENT SHALL Max’s CLD’S LIABILITY TO END USER OR TO ANY THIRD PARTY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY END USER TO Max’s CLD FOR THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. IN NO EVENT WILL Max's CLD BE LIABLE TO END USER OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY EVEN IF A LIMITED REMEDY PROVIDED HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.

8. Indemnification End User shall indemnify, defend, and hold Max’s CLD harmless from and against any and all liability, damages, losses, or expenses (including reasonable fees of attorneys and other professionals) arising from any claim, demand, action, or proceeding initiated by any third party based upon any claim that End User has failed to use E-Learning in accordance with the terms and conditions of this Agreement or has otherwise failed to comply with the terms of this Agreement.

9. Term and Renewal Rights

a. Term and Termination: The Agreement is in effect for a period of one (1) year or six (6) months (depending on the curriculum, as specified below) from the Effective Date, unless earlier terminated as provided herein. - Onboarding Modules- one (1) year from the Effective Date - Management Team Training- six (six) months from the Effective Date - Support Units Training - six (six) months from the Effective Date - Optional Training - six (six) months from the Effective Date Max's CLD may terminate this Agreement upon thirty (30) days written notice to the other party if the other party has materially breached this Agreement and such breach is not cured during such 30-day period.

b. Effect of Termination. Upon termination or expiration of this Agreement, (i) End User shall immediately cease all use of E-Learning; and (ii) each party shall promptly return all copies of the other party’s confidential information. End User acknowledges and agrees that prior to the termination or expiration of this Agreement, End User, to the extent it deems necessary in its discretion, shall be responsible for downloading any and all records and reports of E-Learning activity that End User desires to retain from the LMS. Except as expressly provided in this Agreement, in no event shall End User be entitled to a refund of any License Fees prior to the effective date of termination. Any obligation of either party, which accrued prior to termination or expiration, including any payment due, shall survive termination of this Agreement. Termination of this Agreement shall have no effect on any other agreement between the parties. Sections 3, 4, 7, 8, 9b and 10 will survive the termination or expiration, for any reason, of this Agreement.

10. General

a. Force Majeure. Neither party shall be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder (excluding payment obligations) or for failure to give the other party prior notice thereof when such delay or failure is unforeseeable and due to the elements, acts of God, civil commotion, strikes, labor disputes, Internet service interruptions or slowdown thereof, vandalism or “hacker” attacks, delays in transportation, supply failures, acts of governmental or regulatory agencies or authorities, delays in delivery by vendors, or any other unforeseeable causes beyond that party’s reasonable control.

b. Miscellaneous. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. End User may not assign this Agreement without the prior written consent of Max’s CLD, and any assignment in violation of this Section shall be null and void. Notwithstanding anything to the contrary herein, End User acknowledges and agrees that Max’s CLD may use third-party service providers in the performance of certain of its obligations hereunder. The parties to this Agreement are independent contractors. There are no third party beneficiaries to this Agreement. Any notice under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other party. Notices shall be delivered to End User and Max’s CLD at the respective addresses set forth above, or to such other address as is provided by one party to the other in writing. No modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.

YOU (END USER) ACKNOWLEDGE THAT YOU HAVE READ THE FOREGOING AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS. BY CLICKING "I AGREE" ON THE PRECEDING PAGE, YOU CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.