SUMTOTAL SUBSCRIPTION SERVICE

TRIAL SERVICE

Terms of Use

IMPORTANT-READ CAREFULLY: BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS FOR THE TRIAL SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF SUMTOTAL SYSTEMS, INC.’S (“SUMTOTAL”) ONLINE TRIAL SERVICE (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.

1. SERVICE.

The modules for the Service which you have selected are described on SumTotal’s website at sumtotalsystems.com (the “Site”). As part of the Service, SumTotal will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. SumTotal may at its sole discretion modify the features of the Service from time to time. SumTotal will set up a website for you from which you can access the Service and will notify you of the URL for such website. You agree that no productive or commercial use of the Service is permitted under this Agreement. We may change the Service at any time at our sole discretion. For reference, a Definitions section is included at the end of this Agreement.

2. PRIVACY & SECURITY; DISCLOSURE.

SumTotal’s privacy and security policies may be viewed at the Site and are incorporated in this Agreement by reference. SumTotal reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, SumTotal occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. You agree that SumTotal can disclose the fact that you are a customer and the Service modules that you are using.

3. USER ACCOUNT.

A user account is required to access the Service. To open a user account, you must complete the registration process by providing SumTotal with current, complete, and accurate information and you are required to promptly update such information should it become inaccurate or untrue. Should SumTotal suspect that such information is untrue, inaccurate, not current or incomplete, SumTotal has the right to suspend or terminate your use of the Service. If you are an individual, you represent you are 18 years or older, or the applicable age of majority in your jurisdiction. No contract will exist between you and SumTotal for the Service until SumTotal accepts your order by a confirmatory email or other means of communication.

4. ACCESS TO SERVICE.

SumTotal hereby grants you a non-exclusive, non-transferable, worldwide right to access and use the Service for a period of thirty (30) days from the date which sign up for the Service, subject to the terms and conditions of this Agreement. You may only allow 10 Named Users access to the Service. ,

You may not access the Service if you are a competitor of SumTotal. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, marketing, or competitive purposes.

Each Named User must have a Login and will be asked to provide a password. SumTotal reserves the right to require you to alter any password if SumTotal believes it is no longer secure. You shall not permit more than one person to use each Login to access the Service or otherwise share login accounts, user identifications or passwords. You shall not deactivate a named individual access to the Service and assign such access to another named individual You are responsible for all access to the Service and activities conducted by individuals accessing the Service using the Logins, including such individual’s compliance with the terms herein. You agree to notify SumTotal immediately if you suspect any unauthorized use of your Account or access to any password.

5. RESTRICTIONS.

You shall use the Service solely for your internal business purposes and only for non-productive, non-commercial use, in compliance with applicable law, and shall not: (i) resell, sublicense, lease, time-share or service bureau basis or otherwise make the Service available to any third party; (ii) send or store infringing or unlawful material; (iii) send or store any Malicious Code; (iv) access the Service by any means other than the Login or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (v) modify, copy or create derivative works based on the Service; (vi) reverse engineer the Service; (vii) access the Service for the purpose of building, selling, marketing or otherwise, a competitive product or service or copying its features or user interface; or (viii) distribute, make any commercial use of, use to operate a Web-site or otherwise generate income from the Service.

6. YOUR RESPONSIBILITIES.

You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify SumTotal immediately of any unauthorized use of any Login or Account or any other known or suspected breach of security; (ii) report to SumTotal immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you to be infringing or unlawful; and (iii) not impersonate another SumTotal customer or provide false identity information to gain access to or use the Service.

You warrant that you are authorized to bind, and hereby bind your Named Users, to the terms and conditions of this Agreement as if the Named Users were you. You hereby indemnify, defend, and hold harmless SumTotal and its respective officers, directors, employees, agents, successors, and permitted assigns from and against any damages sustained by your Named Users and/or SumTotal due to your breach of the foregoing warranty.

You hereby acknowledge that use of the Service requires establishment and maintenance of a dedicated Internet access to the Service by you with capacity and bandwidth as specified by SumTotal from time to time and as may be modified by SumTotal from time to time. You shall be responsible for any costs in connection with establishment and maintenance of access to the Service via the Internet, including (without limitation) telephone, communications, Internet service provider costs, computer hardware, modem, fees charged by third parties, insurance, Internet access software, or any other costs incurred by you in accessing the Service.

As consideration for using the Service, you shall provide us with timely feedback regarding the Service and any product related to such which we may request from you.

7. ACCOUNT INFORMATION AND DATA.

SumTotal does not own any Customer Data. You, not SumTotal, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and SumTotal shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. You hereby grant to SumTotal a non-exclusive, fully-paid and royalty-free license to reproduce, distribute, perform, display and otherwise use the Customer Data solely to provide the Service to you. You represent and warrant that: (i) you own or otherwise have the right to grant the license set forth in this section for the Customer Data, and (ii) the Customer Data does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity. SumTotal has the right (but not the obligation) to review any Customer Data and delete any Customer Data that in the sole judgment of SumTotal violates this Agreement; is prohibited content; is illegal; violates the rights, harms, or threatens the safety of any user or any other person; or creates liability for SumTotal, its Suppliers, or any user. SumTotal reserves the right (but has no obligation) to investigate and take action in its sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing Customer Data from the Service, terminating the Agreement, reporting you to law enforcement authorities, and taking legal action against you.

You agree and acknowledge that you are solely responsible for creating back-ups of your Customer Data. You agree and acknowledge that SumTotal has no obligation to retain the Customer Data, and may delete such Customer Data. Upon expiration or termination of this Agreement, we will remove and/or discard the Customer Data.

8. INTELLECTUAL PROPERTY OWNERSHIP.

SumTotal alone (and its Suppliers, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SumTotal Technology and the Service and you hereby assign to SumTotal any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Service or the SumTotal Technology. SumTotal may use such submissions as it deems appropriate in its sole discretion. SumTotal hereby grants you a limited, non-sub-licensable license to reproduce and display the Content (excluding any software code) solely for your personal use in connection with reviewing the Site and using the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the SumTotal Technology or the Intellectual Property Rights owned by SumTotal and its Suppliers. The SumTotal name, the SumTotal logo, and the product names associated with the Service are trademarks of SumTotal or its Suppliers, and no right or license is granted to use them. You will not accrue any residual rights to the SumTotal Technology or Service, including any rights to the Intellectual Property Rights in connection therewith. You will not remove, deface or obscure any of SumTotal's or its Suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service.

9. COPYRIGHT POLICY.

It is SumTotal’s policy to terminate membership privileges of any customer or user who repeatedly infringes copyright upon prompt notification to SumTotal by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for SumTotal’s Copyright Agent for notice of claims of copyright infringement is as follows:

Copyright Agent, SumTotal Systems, Inc.

1808 North Shoreline Boulevard

Mountain View, CA 94043

Attn: Copyright Agent

e-mail: erottenberg@sumtotalsystems.com

10. TERM AND TERMINATION.

The initial term of your agreement will commence on the Service Start Date and shall end of the (thirtieth day) following the Service Start Date, unless SumTotal elects, in its own discretion, to terminate earlier. SumTotal shall have the right to terminate the Agreement without notice for any reason and immediately disable and deny access to the Service. If you have more than 10 Named Users access the Service, we will terminate the Agreement and immediately disable and deny access to the Service

Sections titled “your Responsibilities” shall survive any termination of this Agreement. Upon any termination of this Agreement, you must cease any further use of the Services and destroy any copies of associated software within your possession and control.

11. INJUNCTIVE RELIEF.

You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to SumTotal, its affiliates, suppliers and any other party authorized by SumTotal to resell, distribute, or promote the Services ("Resellers"), and under such circumstances SumTotal, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

12. REPRESENTATIONS AND WARRANTIES.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

13. DISCLAIMER OF WARRANTIES.

YOU UNDERSTAND AND AGREE THAT THE SERVICE AND CONTENT ARE PROVIDED "AS IS" AND SUMTOTAL, ITS AFFILIATES, SUPPLIERS, LICENSORS, AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SUMTOTAL, ITS AFFILIATES, SUPPLIERS, LICENSORS, AND RESELLERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY (A) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, (C) THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE AND (D) THAT (i) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU.

SUMTOTAL’S SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUMTOTAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. FOR FURTHER WARRANTY INFORMATION YOU MAY CONTACT SUMTOTAL’S CUSTOMER SUPPORT DEPARTMENT AT 877-TOTALCS.

14. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SUMTOTAL OR ITS AFFILIATES, SUPPLIERS, LICENSORS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) , ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUMTOTAL, ITS AFFILIATES, SUPPLIERS, LICENSORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SUMTOTAL'S, ITS AFFILIATES’, SUPPLIERS’, LICENSORS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

15. INDEMNIFICATION.

You agree to indemnify, defend and hold harmless SumTotal, its Affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from your use of the Service, your violation of this Agreement or the infringement or violation by you or any other user of your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems.

16. ELECTRONIC COMMUNICATIONS.

The communications between you and SumTotal use electronic means, whether you visit the Site or send SumTotal e-mails, or whether SumTotal posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from SumTotal in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SumTotal provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your statutory rights.

17. LOCAL LAWS AND EXPORT CONTROL.

This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other countries. You acknowledge and agree that the Site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and applicable foreign export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.

SumTotal and its Suppliers make no representation that the Service is appropriate or available for use in other locations other than the United States of America. If you use the Service from outside the U.S., you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or applicable foreign law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes.

18. MISCELLANEOUS.

18.1 Choice of Law and Forum.

This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and shall be governed by the internal laws of the State of California, excluding its conflict of law rules, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act are expressly disclaimed. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, SumTotal may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinance, regulations and statutes that are applicable to your use of the Service. The parties of this Agreement have expressly required that the present Agreement be drawn up in the English language

18.2 Entire Agreement, Modifications, and Waivers.

This Agreement contains SumTotal’s entire agreement with respect to the subject matter hereof. This Agreement may not be modified except by written instrument signed by both parties and referring to the particular provisions to be modified. All terms, conditions, or provisions which may appear as pre‑printed language or otherwise be inserted within any purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement. If any provision of this Agreement is declared invalid or unenforceable, then the court shall replace the invalid or unenforceable provision with a valid and enforceable provision that most accurately reflects the parties’ intentions and the remaining provisions of this Agreement shall remain in full force and effect. Without limiting the generality of the foregoing, you agree that the Limitation of Liability section will remain in effect even if Warranty section is found to be unenforceable in whole or in part. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Wherever the term “including” is used, it shall mean “including, but not limited to”.

18.3 Notices.

SumTotal may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in SumTotal’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in SumTotal’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to SumTotal (such notice shall be deemed given when received by SumTotal) at any time by any of the following: letter sent by confirmed facsimile to SumTotal at the following fax number (650)962-9411; letter delivered by nationally recognized overnight delivery service; or first class postage prepaid mail to SumTotal at the following address: 1808 North Shoreline Boulevard, Mountain View, CA 94043. All such notices should be addressed to the attention of: General Counsel.

18.4 Force Majeure.

Neither party shall be in default if its failure to perform any obligation under this Agreement (other than obligations to make payments when due) is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, war, terrorism, civil commotion, strikes, labor disputes, Internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.

18.5 Assignment.

This Agreement and any rights granted to you hereunder, are non-transferable, non-exclusive, non-assignable, limited and personal to you. Neither party may assign its interest in this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, SumTotal may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to you or your consent. For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of SumTotal’s assets or any other transaction in which more than 50% of its voting securities are transferred. This Agreement will inure to the benefit of and be binding upon the party’s successors and permitted assigns. Unless otherwise specifically agreed to by the non‑assigning party, no assignment by either party shall relieve the assignor from its obligations pursuant to this Agreement. Any assignment in violation hereof shall be null and void.

18.6 General Provisions.

Any and all rights and remedies of SumTotal upon your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on SumTotal, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.

19. DEFINITIONS.

As used in this Agreement now or hereafter associated herewith: "Agreement" means these online terms of use, and any materials available on the SumTotal website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by SumTotal from time to time in its sole discretion; "Content" means the visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Login” means the username and password assigned to Customer by SumTotal for each Named User; “Malicious Code” means any computer viruses, worms or any other software that is intended to damage or alter a computer system or data; "Named User(s)" means any individual who is authorized to use the Service; “Service Start Date” shall be the first day on which SumTotal makes the Service available to you; "SumTotal" means SumTotal Systems, Inc., a Delaware corporation, having its principal place of business at 1808 North Shoreline Boulevard, Mountain View, California 94043, and its affiliates; "SumTotal Technology" means all of SumTotal’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by SumTotal in providing the Service; “Suppliers” means any SumTotal suppliers, licensors and resellers; "Service" means the hosted, on-demand, web-based service offered by SumTotal, including updates thereto from time to time and accessible via http://trial.sumtotalsystems.com or another designated web site or IP address.