Training Terms of Service

1. These Standard Training Terms of Service (“TOS”) apply to the standard web-based, on-site, and asynchronous training services* offered by Tobii Dynavox, provided to the client as the standard web-based or onsite training purchaser (“Client”). Tobii Dynavox does not accept any terms incorporated by Client that are in addition to, contrary to or which deviate from these TOS. By purchasing standard web based and/or onsite training (“Order”) Client accepts and agrees to these “TOS,” and Client agrees its use of the means of access (“Onsite, Live web-based training through an online meeting platform or asynchronous learning through a learning management system) and any information (“Training Products”) will be governed by these TOS.

2. As used herein, (i) “Services” means the web-based and onsite training services to be supplied by Tobii Dynavox to Client, including, without limitation, the permitted uses of the Training Portal and Training Products, and (ii) “Intellectual Property” means discoveries, innovations, inventions, methods, works of authorship and the copyrights therein, design rights, trademarks, patents, trade secrets and know-how, including, without limitation, the Training Portal and all Training Products, as further defined below.

3. Fees: Client shall be responsible for payment fees for Services. Client’s obligation to pay fees is absolute and unconditional, and the fees will be non-refundable. Fees will not be subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment, or recoupment for any reason whatsoever.

4. Taxes: Client will pay all applicable federal, state, and local sales, use and excise taxes and all similar taxes attributable to Client’s use of the Services.

5. Cancellation/No-Show Policy:

(i) Tobii Dynavox will allow one live learning event cancellation/rescheduling (virtual or in person) without penalty provided at least 48 hours’ notice is given by Client prior to the scheduled event. An event that is cancelled with less than 48 hours' notice and no Force Majeure event (described in 12 below) will be treated as if the event occurred as scheduled and no refund or compensation will be issued to Client.
Additionally, Client shall be responsible for and shall reimburse any nonrefundable costs and expenses, including travel expenses, incurred as a result of cancellation/rescheduling. If the event is cancelled with at least 48 hours' notice but is not rescheduled prior to expiration of the Order, the services will be deemed delivered by Tobii Dynavox and no refund or compensation will be issued to Client.
(ii) An event that is scheduled where there are no attendees (after a 15-minute waiting period) and no Force Majeure event (described in 12 below) will be considered a cancellation without notice and treated as if the event had occurred as scheduled and no refund or compensation will be issued to Client.
(iii) If Tobii Dynavox must cancel Services more than 30 days prior to when the event is scheduled, Tobii Dynavox, in its sole discretion, may: 1) reschedule the Service to another date within 12 months' time with a minimum of six weeks lead time, OR 2) provide a full refund.
(iv) If Tobii Dynavox must cancel Services fewer than 30 days prior to when the event is scheduled, Tobii Dynavox, in its sole discretion, may: 1) offer a live virtual training in replacement of the canceled in-person Service (with 2 weeks lead time and within 12 months of the event date), OR 2) reschedule the in-person Service at no additional cost (within 12 months of the original event date), OR 3) provide a full refund.

6. Intellectual Property: Tobii Dynavox owns all Intellectual Property rights in the Training Portal and the Training Products and in no case are Training Products considered works made for hire. Client’s right to use the Training Portal and Training Products is subject to the following license. Client has purchased the right to access Tobii Dynavox’s proprietary training portal (the “Training Portal”) and the Training products selected by Client. “Training Products” may include the following:

(i) Video recordings or other recorded materials
(ii) Live training and live training materials
(iii) Supplementary written materials, including materials shown online during training

7. Client shall have use of the Training Products upon purchase for the Term specified in the Order. Subject to these TOS, Tobii Dynavox grants to Client, and Client accepts, a limited right and license to access the Training Products via the training Portal. Client shall not modify, edit, or abbreviate the Training Products in any way. The Video Content shall at all times, remain on Tobii Dynavox’s server, and Client shall not copy the Video Content onto its own or any third-party server, computer, or other device, nor make any recordings or other copies of the Video Content. Client may download copies of the Training Materials for Client’s own internal use during training but may not further distribute them. Client shall not sublicense, assign, or transfer the rights granted herein without the prior written consent of Tobii Dynavox. Client covenants that it shall not: (i) decompile, disassemble, or identify the source code of the Training Portal or encourage others to do so; (ii) modify, or created derivative works of, the Training Portal or any Training Product; (iii) use the Training Portal or any Training Product to provide services to any third parties; (iv) interfere with or disrupt the integrity or performance of the Training Portal or the Training Products contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks. Any violation of any of the foregoing covenants or any other obligation under these TOS by Client or anyone accessing the Training Portal using Client’s account shall result in immediate termination of the licenses granted herein.

8. Indemnification. Client hereby agrees to indemnify, protect, and hold harmless Tobii Dynavox and its agents, employees, assigns, officers, directors and shareholders from any claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties and reasonable attorneys’ fees, howsoever caused, (the “Liabilities”), arising out of or related to (i) the acts or omissions of Client, its authorized users, or any end user accessing the Training Portal using Client’s account; or (ii) the development, marketing, manufacture, sale or use by Client of any substances or products which are the subject matter of the Training Products. The indemnified Liabilities include those occurring directly to Tobii Dynavox, those arising from claims or actions by governmental agencies and those arising from claims or actions by other third parties.

9. Limitation of Liability. Tobii Dynavox’s total liability to Client for any and all liabilities, claims or damages, howsoever caused and regardless of the legal theory asserted, shall not, in the aggregate, exceed the amount actually paid to Tobii Dynavox in connection with the transaction to which these TOS relate. In no event shall either Tobii Dynavox or Client be liable to the other for any special, indirect, incidental or consequential damages, lost profits, lost business opportunities, loss of use or equipment down time, and loss of or corruption of data, regardless of the legal theory under which such damages are sought, and even if the Parties have been advised of the possibility of such damages or loss. Any claim by Client against Tobii Dynavox must be made in writing and be presented to Tobii Dynavox within one year after the purchase of the Services by Client. The Parties acknowledge the Services to be provide by Tobii Dynavox could not be made available under these TOS without an increase in cost if Tobii Dynavox were required to accept potential liability outside of these limitations, or to provide any representations, warranties or guarantees in addition to or in lieu of those expressly set forth in these TOS.

10. Quality Statement. Tobii Dynavox represents and warrants that it is the owner of the Training Products and has the right to enter into the transaction with Client to which these TOS relate. This warranty is in lieu of any and all other warranties relating to the Services or Training Products, express or implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose, and Tobii Dynavox explicitly disclaims all other warranties. The sole remedy for breach of this warranty by Tobii Dynavox shall be for Tobii Dynavox to provide non-infringing Training Products, or in the alternative, issue a credit therefore, at Tobii Dynavox’s option.

11. Waiver. No waiver of any provision or condition of these TOS, whether by conduct or otherwise, shall be construed as further or continuing waiver of any such provision or condition.

12. Force Majeure. Except for the payment of fees due hereunder by Client, neither Client nor Tobii Dynavox shall be liable in any way for failure to perform any provision of these TOS, if such failure is caused by any law, legislative action, court order, or any cause beyond the control of the party in default (such as fire, failure of energy supply, brown outs, black outs, server down time strike, pandemic, epidemic, strike, riot, acts of God and the like).

13. Non-Publicity. Neither Client nor Tobii Dynavox will use the name of the other or any of their employees for promotional purposes without prior written approval form the other.

14. Tobii Dynavox’s relationship to Client shall be that of an independent contractor and not an employee, or agent of Client. Nothing contained in these TOS shall create or imply the creation of a partnership between Client and Tobii Dynavox and neither shall have any authority (actual or apparent) to bind the other.

15. Dispute Resolution. Any such dispute that cannot be resolved amicably by third party mediation within 45 days after submission to mediation shall be decided by a single neutral arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted in the English language and shall take place in Allegheny County, Pennsylvania, and in no other place. The arbitration shall be conducted in accordance with the procedural laws of the United States Federal Arbitration Act, as amended. The written decision of the arbitrator shall be final and binding and may be entered and enforced in any court of competent jurisdiction. Each party to the arbitration shall pay its fees and expenses, unless otherwise determined by the arbitrator. Notwithstanding the foregoing, either party may seek preliminary or temporary injunctive or similar equitable relief from a court to protect its confidential information pending the conclusion of mediation and/or final decision of the arbitrator. Any action brought in a court (i) for temporary or preliminary injunctive or equitable relief to protect confidential information or (ii) to challenge or enforce the jurisdiction or award of an arbitrator, shall be brought solely in the state courts located in Allegheny County, Pennsylvania, or the federal court for the Western District of Pennsylvania. Tobii Dynavox and Client hereby accept the exclusive jurisdiction of such courts and agree to submit to the jurisdiction of such courts. In addition, Tobii Dynavox and Client irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue in Allegheny County, Pennsylvania or the Western District of Pennsylvania and further irrevocably waive any claim that any suit, action or proceeding brought in Allegheny County, Pennsylvania or the Western District of Pennsylvania was brought in an inconvenient forum. The parties expressly waive their right to trial by jury in any action or proceeding that is in any way related to these TOS and agree that any such action or proceeding not brought in arbitration shall be tried before a judge and not a jury.

16. Notices. All legal notices or requests (“Communications”) to be given under these TOS shall be in writing and shall be given, if to the Client, at the address or email address associated with the Client account, or if to Tobii Dynavox, to Legal Department at 2100 Wharton Street, Ste. 400, Pittsburgh, PA 15203 USA (with copy to legal@tobiidynavox.com) and shall become effective when (i) delivered by hand (or by courier); or (ii) mailed (by registered or certified mail, return receipt requested).

17. Applicable Law. These TOS, and the performance or breach thereof, shall be governed by and interpreted as substantive matters in accordance with the applicable laws of the Commonwealth of Pennsylvania, United States of America, without regard to any choice of law principles that would dictate the application of the law of another jurisdiction. The application of the 1980 United Tobii Dynavox | 2100 Wharton Street, Suite 400 | Pittsburgh, PA. 15203. USA | Phone: +1 800 344 1778 | www.tobiidynavox.com Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these TOS.

18. These TOS constitute the entire agreement between Client and Tobii Dynavox with respect to the specific subject matter thereof and supersede any prior agreements and /or understandings, whether oral or written.

19. No modification or amendment to these TOS shall be affected by or result from trade custom or course of dealing, or from the receipt, acceptance, signing or acknowledgment of Client purchase orders or other business forms containing terms or conditions in addition to or different from the terms and conditions set forth herein, and these TOS shall supersede any provision in any such document that is in addition to or inconsistent with these terms.

20. The parties’ obligations under clauses 5, 6, 7, 8, 9, 10, 14, 15, 16 and 19 shall survive any termination of these TOS.

Training services must be consumed within one year from the date on the invoice. If the Client fails to timely schedule and utilize training services purchased by the Client prior to the expiration date, the services will be deemed delivered by Tobii Dynavox and no refund or compensation to the Client will be issued.

Each web-based course purchased includes 2.5 hours of content. Training will be scheduled at a mutually agreed date and time. To schedule the training, the Client must fill out a survey link sent via email by Tobii Dynavox. The date will not be confirmed until the training is paid for by the Client. The content of any live onsite or live virtual course must be consumed in a single day. Breaking content across multiple days necessitates the purchase of additional courses.

The trainer will set up virtual meeting space using an online platform and provide the link to the Client training contact.

The Client training contact is responsible for distributing the link to individuals in the Client organization who should attend the training. Attendees must register for the session to receive the virtual meeting space link.

The content of any live onsite or live virtual course must be consumed in a single day. Breaking content across multiple days necessitates the purchase of additional courses.

Training will be scheduled at a mutually agreed date and time. The date will not be confirmed until the training is paid for by the Client.

Tobii Dynavox trainer will bring all handouts needed for the training. Client is responsible for securing transportation and travel arrangements for Client attendees for the training.

Client is responsible for providing audiovisual support including a projector, screen, microphone, and speakers. Client is also responsible for securing a meeting space. If the training is hands-on with software, the Client is responsible for ensuring that the software is functional and up to date.

Training participants are responsible for their own snacks and meals.

Upon Client request, Tobii Dynavox may develop custom training services tailored to Client’s stated training needs (“Custom Training Services”) If Custom Training Services are desired, Client should contact their Tobii Dynavox Solutions Consultant, as those services are outside the scope of standard training and beyond these TOS.