Customer Terms of Service

These Customer Terms of Service (the “Customer Terms”) describe the rights and responsibilities of Customers when accessing the Lobster Ink Platform and using the Lobster Ink Training Services.

If you are a Customer, these Customer Terms govern your access to the Platform and use of the Training Services. If you are a User that has been invited to a workspace on the Platform by a Customer, the User Terms of Service (the “User Terms”) govern your access to the Platform and use of the Training Services. 

“Customer”, “User”, and other defined terms are as set out in section 2 or within the body of these Customer Terms.

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1. Acceptance of the terms of service 

These Customer Terms are entered into by and between Customer and Ecolab Inc. (“Ecolab”). Ecolab’s obligations may be carried out by Lobster Ink, a division of Ecolab. These Customer Terms, together with any Other Contracts that apply, together form the binding “Agreement” between Customer and Ecolab governing Customer’s access to the Platform and use of the Training Services. 

Please read these Customer Terms carefully before you start to use the Platform. By using the Platform or by ticking a checkbox to accept or agree to these Customer Terms when this option is made available to you, you accept and agree to be bound and abide by the Agreement on behalf of Customer. 

If you do not agree to these Customer Terms, you must not access the Platform or use the Training Services. 

Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.

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2. Definitions

Capitalized terms shall have the following meanings:

• “Content” means all of the content and Courses hosted on the Platform, including but not limited to still images, text, assessment content, video, the Training Media and still images thereof, graphic designs, audio recordings, multimedia programmes and computer programmes and/or software; 
• “Courses” means the training courses present on the Platform that are not Customer Content, whether Custom Courses or Hallmark Courses; 
• “Customer” means the organization that you represent in agreeing to the Agreement; 
• “Custom Courses” means the Course(s) created exclusively for Customer in terms of a separate production agreement entered into between Customer and Ecolab;
• “Customer Content” means all content belonging to Customer that is provided to Ecolab or uploaded by Customer so that it is hosted on the Platform and accessed by Customer pursuant to the Agreement;
• “Data Processing Agreement” means the data processing agreement located at https://www.lobsterink.com/legal/dpa; 
• "Ecolab", "we", or "us" means Ecolab Inc., its affiliates and subsidiaries, including Lobster Ink, a division of Ecolab; 
• “Effective Date” means the date of commencement of the Training Services, being the date of Customer’s purchase of the Training Services or such other date as is agreed by the parties in writing;
• “Hallmark Courses” means the Courses created by Ecolab and licensed to Customer on a non-exclusive limited basis;
• “Online Assessment” means the testing and assessment services present on the Platform;
• “Partner Courses” means the Hallmark Courses that Ecolab has developed together with a content partner, which may or may not be presented on the Platform as partner Courses or partner Content; 
• “Platform” means the Lobster Ink software and/or Content as a service which is hosted by Ecolab or its hosting providers and which is accessed by Customer and its Users via the internet; 
• “Service Level Agreement” means the service level agreement located at https://www.lobsterink.com/legal/sla;
• “Training Media” means the training media (including the video recordings) which are hosted on the Platform, containing the Courses and the Online Assessment and to which Customer and its identified and approved Users will have access in terms of the Agreement;
• “Training Services” means the services supplied by Ecolab to Customer being the provision of the Courses and the Online Assessment with the required implementation and support, and includes the non-exclusive license to make use of these Training Services for the duration of the Agreement and in accordance with its terms; 
• “Other Contracts” means other agreements (including terms and conditions for online purchases of the Training Services) that Customer has entered into with Ecolab  in respect of the purchase of goods or services from Ecolab (including those provided by Lobster Ink); and
• “User(s)” means the individuals that Customer has invited to its workspace on the Platform and/or to use the Training Services. 

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3. Changes to the terms of service

We may revise and update these Customer Terms from time to time in our sole discretion. If we make a material change to these Customer Terms, we will provide Customer with reasonable notice in advance of the change. All changes are effective immediately when we post them. Customer’s continued use of the Platform or the Training Services following the posting of revised Customer Terms means that Customer accepts and agrees to the changes. Customer is expected to check this page from time to time so that Customer is aware of any changes, as they are binding on Customer. 

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4. Conflicts with other terms and conditions

Customer’s access to the Platform and use of the Training Services may be governed the Other Contracts that Customer has entered into with us. Customer’s access to the Platform and use of the Training Services is subject to the Other Contracts and in the event of any conflict between these Customer Terms and an Other Contract, the terms of the Other Contract will prevail.

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5. Fees and payment

As consideration for Ecolab’s providing the services that are the subject matter of these Customer Terms, Customer will pay the fees that have been agreed in the applicable Other Contract, that are agreed with Ecolab at the time of entering into these Customer Terms, or that are agreed with Ecolab at the time of purchasing the Training Services.

Except as otherwise set out in an Other Contract or as agreed with Ecolab at the time of purchasing the Training Services:

• In the event that a User is terminated from, or otherwise leaves, employment with Customer, Customer is permitted to transfer that original User’s license to a new User, for access to the Courses that Customer has subscribed to under the Agreement, to a maximum extent of 20% of the number of User licenses granted under the Agreement per contract year. In addition, the total number of Users for Courses at any one time shall never exceed the total number of User licenses that Customer has subscribed to under the Agreement. Should Customer contravene this obligation or abuse the transfer of User licenses in any respect, any such transferred User licenses will be charged at the list price without any discount applied (retrospectively if necessary), it shall be deemed a material breach and Ecolab reserves the right to take any further steps that it deems necessary; 
• Customer shall make all payments under the Agreement without exchange, set-off, withholding or deduction of, or in respect of, any tax, levy, duty, charge or fee unless required by law. If any such withholding or deduction is required, Customer shall pay to Ecolab such additional amount as will ensure that Ecolab receives the same total amount that it would have received if no such withholding or deduction had been required;
• Fees are subject to escalation at Ecolab’s discretion on each anniversary of the Effective Date. Ecolab will give Customer at least two (2) month’s prior written notice of the escalation rate to apply; 
• All and any amounts due to Ecolab by Customer shall be paid by using the method set out on Ecolab’s invoice, or as otherwise agreed in writing. If the method of payment has not been set out on Ecolab’s invoice and has not been otherwise agreed in writing, payment shall be made by electronic funds transfer into the nominated bank account of Ecolab (as detailed on the invoice) within thirty (30) days of the date of invoice.

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6. Term and termination

Customer’s access to the Platform and use of the Training Services is valid for the term of the Agreement. The term of the Agreement may be dependent upon the term of applicable Other Contracts. On termination or expiry of all applicable Other Contracts, Ecolab may terminate the Agreement and these Customer Terms. 

Except as otherwise set out in an Other Contract or as agreed with Ecolab at the time of purchasing the Training Services:

• The Agreement will come into force and effect on the Effective Date; and 
• The Agreement will continue for an initial period of twelve (12) months (the “Initial Period”), and will automatically renew for a period of twelve (12) months (each a “Renewal Period”) at the end of the Initial Period and at the end of each Renewal Period. Either party may terminate the Agreement at the end of the Initial Period or the relevant Renewal Period, as the case may be, by giving at least one (1) month’s prior written notice to the other party.

Ecolab may terminate Customer’s access to the Platform and use of the Training Services immediately by giving written notice to Customer in the event that:

• Customer has failed to make payment of any sum due and payable under the Agreement within fourteen (14) days of written notice from Ecolab specifying the amount and nature of the sum due and requiring it to be paid; or 
• Customer commits any material breach of any of the provisions of the Agreement and fails to remedy it within fourteen (14) days of Ecolab’s written notice containing particulars of the material breach and requiring it to be remedied.

Notwithstanding the foregoing, Ecolab may terminate Customer’s access to the Platform and use of the Training Services immediately if Ecolab has a reasonable belief that Customer’s access is not secure and may result in system vulnerability. 

Customer’s access to the Platform and use of the Training Services may be dependent upon minimum purchase commitments described in applicable Other Contracts. Should Customer fail to comply with these minimum purchase commitments, Ecolab may restrict Customer’s access or terminate the Agreement and these Customer Terms.

Termination of the Agreement for any reason shall not affect the accrued rights of the parties arising in any way out of the Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other, and all provisions which are expressed to survive the Agreement shall remain in force and effect.

Suspension of Services: Notwithstanding anything to the contrary, Ecolab may suspend Customer’s and the User’s access to the Platform and use of the Training Services in the event of (a) Customer’s material, uncured breach of this Agreement, including without limitation failure to make payment of any sum due and owing; (b) an actual or reasonably suspected security threat reasonably requiring suspension of the Services to protect or prevent damage to Ecolab’s data or the data of other customers, or to Ecolab’s platform or IT infrastructure; or (c) Ecolab reasonably believes that Customer’s access or use of the Services violates any applicable law, rule or regulation.

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7. Access

The Training Media and related manuals will be provided to Customer for the term of the Agreement. Customer will use the Training Media for the limited purpose of training the Users and for no other purpose whatsoever. 

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8. Training material and online assessment

The Platform contains the software which will allow Customer to view the Customer Content, the Content, access the online course manuals, perform the online assessments, monitor staff performance, create User profiles and store staff assessment information in Customer’s workspace, which workspace will be established by Ecolab on the Platform. Ecolab hereby grants to Customer the right to access the Platform and the Content for the term of the Agreement subject to the provisions of the Agreement. Customer must ensure that its Users comply with the Agreement and the User Terms.

Customer will determine who the Users will be and is responsible for User registration on the Platform. Customer will be responsible for the Users’ conduct while accessing the Platform and will be liable for any damages, loss or claims howsoever arising from or relating to the use or misuse of, or access to, the Platform by the Users.  

Without in any way derogating from the abovementioned, Customer and the Users will not in any way whatsoever and without limitation edit, alter, copy, reproduce, transmit, perform, create derivative works of, grant any rights in respect of, publish, or disseminate any of the online manuals, the Content or any portion of either; disassemble or reverse engineer the Content or any part thereof; and/or do anything or allow the doing of anything, which may have the effect of circumventing, disabling, damaging or impairing the Platform or the Content or any portion of either and, in particular, the Platform’s control or security systems.

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9. Information usage

Customer agrees that Ecolab may electronically collect, store and use the following of the User’s information:

• Personal data (also commonly referred to as personal information or personally identifiable information (PII)) within the meaning of privacy laws applicable to Customer and/or to Ecolab during the term of the Agreement (“Personal Data”), which may include name, email address, job role, employee number, and telephone number; and
• Internet usage information, including internet protocol address, the dates and times that the User accesses the Platform, and time spent on the Platform. 

With respect to data that may qualify as Personal Data, Customer shall, in its use of the Training Services provided by Ecolab hereunder, collect, access, use, store, disclose, dispose of, transfer and otherwise process the Personal Data of Customer and its Users in accordance with the requirements of applicable data protection laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of such Personal Data, the means by which Customer acquires such Personal Data, and the means by which Customer or any relevant affiliate of Customer collects, stores, processes and transmits such Personal Data. Customer shall collect, store, process and transmit to Ecolab the Personal Data of Customer and its Users in accordance with the requirements of all applicable laws. Customer agrees to indemnify and hold Ecolab and its affiliates harmless from any claim related to the foregoing.

The information provided by the User may be used by Ecolab to communicate product releases, functionality updates and enhancements, to remember a User’s information in order that they do not have to re-enter such information for log-in purposes, and to track or notify the User of entries, submissions and status in connection with the usage of the Platform. 

Ecolab acknowledges and agrees that Customer owns and retains all right, title and interest in and to the data, information and material that it uploads or that results from its use of the Training Services (the “Customer User Data”) as well as to the Customer Content hosted on the Platform. Customer acknowledges and agrees that Ecolab owns and retains all right, title and interest in and to the Derived Data. “Derived Data” means (i) Customer User Data that has been processed, anonymized, aggregated and/or manipulated by or on behalf of Ecolab to such a degree that it cannot be identified by visual inspection as originating directly from Customer User Data and cannot be reverse-engineered such that it can be so identified; (ii) usage data and Customer User Data in aggregated form used for security and operations management, to create statistical analyses, for research and development purposes and incorporated into aggregated and anonymized data sets for the purpose of improving and commercializing products, software, technology and services of Ecolab; and (iii) any general information or insight that is derived by or on behalf of Ecolab in connection with the provision of the Training Services. 

Customer agrees to the terms of the Data Processing Agreement which is entered into between Customer and Ecolab and forms part of the “Agreement” between Customer and Ecolab. 

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10. Support services 

Ecolab will provide Customer with the support services as detailed in the Service Level Agreement which is entered into between Customer and Ecolab and forms part of the “Agreement” between Customer and Ecolab.. 

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11. Ownership of intellectual property

It is recorded and agreed that all of the rights in and to all and any intellectual property in the Content (other than the Custom Courses) as well as the Platform, Training Media, whether registered or not, vests in Ecolab and nothing contained or implied in the Agreement will derogate from Ecolab’s intellectual property rights in any way whatsoever. Similarly, nothing in the Agreement shall affect Customer’s right in and to all and any intellectual property in the Customer Content and nothing contained or implied in the Agreement will derogate from Customer’s intellectual property rights in any way whatsoever. Ownership and delivery of the Custom Courses and the intellectual property rights therein shall be as agreed between Customer and Ecolab and set out in the related production agreement. Neither Ecolab’s nor Customer’s intellectual property may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited in whole or in part in any way whatsoever, without the express prior written consent of the owner of such intellectual property. 

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12. Intellectual property indemnity

Intellectual property indemnification 

Ecolab shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Training Services as delivered to Customer and used as authorized in the Agreement infringes or misappropriates any U.S. patent, copyright, trademark, trade secret or other intellectual property right of any third party; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Ecolab, provided that Customer provides Ecolab: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Ecolab in connection with the defense or settlement of, any such claim. If any such claim is brought or, in Ecolab’s judgment may be threatened, Ecolab may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Training Services; (x) modify the Training Services to make it non-infringing; (y) replace the Training Services with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement, and refund a pro rata portion of unused and pre-paid fees applicable to the services that are subject matter of these Customer Terms (if any) for the outstanding balance of the Agreement’s term.

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Limitations

Notwithstanding the first paragraph of this section 12, Ecolab will have no liability to Customer for any claim arising out of or based upon: (i) use of the Training Services in combination with software, products or services not provided by Ecolab; (ii) any modification of the Training Services not made or authorized in writing by Ecolab; (iii) Customer’s failure to use the Training Services in accordance with the Agreement or documentation provided by Ecolab, or otherwise using the Training Services for purposes for which it was not designed or intended; or (iv) use of any specified release of the Training Services after Ecolab notifies Customer that continued use of such release may subject Customer to a claim of infringement, if Ecolab provides a replacement release.

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Disclaimer

THE FOREGOING PROVISIONS OF THIS SECTION 12 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ECOLAB, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM OR THE TRAINING SERVICES OR ANY PART THEREOF.

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Indemnification by Customer

Customer shall: (i) defend, or at its option settle, any claim brought against Ecolab by a third party (a) to the extent it alleges that the Customer Content as delivered to Ecolab or uploaded to the Platform and used by Ecolab as authorized in the Agreement infringes or misappropriates any US patent, copyright, trademark, trade secret or other intellectual property right of any third party, or relating to (b) any data provided or made available by or on behalf of Customer or (c) Customer’s use of the Training Services other than pursuant to the Agreement; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Ecolab provides Customer prompt written notice of and  sole control over the defense and settlement of any such claim as well as all information and assistance reasonably requested by Customer in connection with the defense or settlement of any such claim. If any such claim is brought or, in Customer’s judgment may be threatened, Customer may, at its sole option and expense: (w) procure the right to continue to use the Customer Content and have Ecolab display it; (x) modify the Customer Content to make it non-infringing; (y) replace the Customer Content with non-infringing content; or (z) if none of the foregoing is commercially practicable, terminate the Agreement provided, however, that in such instance, Ecolab is entitled to retain all fees paid.

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13. Limitation of liability

 Unless otherwise expressly provided in the Agreement, Ecolab and Customer’s liability to one another under the Agreement, howsoever arising, shall be limited to direct damages and losses only and in no event shall either party be liable for any business interruption, loss of use, profit, anticipated profit, contracts, revenues, goodwill, anticipated savings, business information, data or other pecuniary loss; and/or consequential, incidental or indirect losses; and/or special or other damages arising out of the Agreement regardless of whether such liability is based on breach of contract, delict, strict liability or otherwise. Ecolab’s total liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total fees actually paid by Customer in respect of the services that are subject matter of these Customer Terms (if any) to which such liability is connected or relates.

Any limitation of liability set out in the Agreement shall not operate to exclude any liability of a party arising as a result of (a) that party’s fraudulent conduct; (b) in respect of any death or bodily injury caused by that party’s negligence or wilful misconduct; or (c) a party’s indemnification obligations set out in the Agreement (unless otherwise expressly agreed). In this section 13 any reference to Ecolab shall also include all of its directors, employees, consultants and agents and the subcontractors with which Ecolab engages in relation to the Training Services.

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14. Warranty disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT OR THESE CUSTOMER TERMS, THE TRAINING SERVICES, SUPPORT AND PROFESSIONAL SERVICES INCLUDING BUT NOT LIMITED TO THE COURSES, THE MANUALS, THE TRAINING MEDIA, THE PLATFORM AND THE CONTENT ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. ECOLAB AND ITS REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING. ECOLAB AND ITS REPRESENTATIVES DO NOT WARRANT THAT THE TRAINING SERVICES WILL BE ERROR-FREE OR WILL WORK WITHOUT INTERRUPTIONS. USE OF THE TRAINING SERVICES REQUIRES ACCESS TO THE INTERNET WITH CUSTOMER ASSUMING ALL RISKS INHERENT IN SUCH ACCESS. 

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15. Confidentiality

All communications between Ecolab and Customer, and all information and other materials supplied to or received by either of them from the other (the “Confidential Information”) shall be kept confidential unless or until the party receiving the Confidential information (the “Receiving Party”) can reasonably demonstrate that the Confidential Information (or the relevant portion thereof) is already in the public domain through no fault of its own; has been lawfully obtained from any third party who/which was under no obligation to keep such communication, information or material confidential; is already lawfully known to the Receiving Party at the time that it receives such information (and the Receiving Party is under no prior obligation to keep such information confidential); or is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or of a governmental or regulatory body, or to comply with the provisions of any law or regulation in force from time to time. The aforementioned is provided that in these circumstances the Receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose; and use its reasonable endeavors to protect the confidentiality of such Confidential Information to the fullest extent practicable. The Parties shall use all reasonable endeavors to procure the observance of these restrictions and shall take all reasonable steps to minimize the risk of disclosure of Confidential Information. 

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16. Notices

Notices given under or in connection with the Agreement shall be delivered in accordance with the notice provisions set out in applicable Other Contracts. In the absence of Other Contracts or notice provisions in applicable Other Contracts, notice shall be given to the following service addresses:

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Ecolab

‍1 Ecolab Place, St. Paul, MN 55102, USA. 
Attention: Marcelle Ferguson  
Copy to: General Counsel 
Email copy to: mlferguson@ecolab.com   
Email copy to: GeneralCounsel@ecolab.com

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Customer‍

To the address(es) provided by Customer to Ecolab when entering into the Agreement.
A notice which has not been served on a party’s notice address as set out above but which has actually been received by such party shall be deemed for all purposes to have been properly served on such party.

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17. Governing law and jurisdiction

All matters relating to these Customer Terms and Customer’s access to the Platform and use of the Training Services, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of New York, without regard to its principles relating to conflicts of law. 

Any legal suit, action, or proceeding arising out of, or related to, these Customer Terms and Customer’s access to the Platform and use of the Training Services shall be instituted exclusively in the courts of the State of New York. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts. 

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18. Limitation on time to file claims

ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THESE CUSTOMER TERMS OR THE PLATFORM OR TRAINING SERVICES MUST BE COMMENCED WITHIN 1 (ONE) YEAR AFTER THE CAUSE OF ACTION OCCURS; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. 

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19. Waiver and severability

No waiver by Ecolab of any term or condition set out in these Customer Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Ecolab to assert a right or provision under these Customer Terms shall not constitute a waiver of such right or provision.

If any provision of these Customer Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Customer Terms will continue in full force and effect. 

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20. Survival

On termination of these Customer Terms, the following sections along with this section shall continue in force: sections 2, 4, 9 and 11 – 22. 

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21. Entire agreement

The Agreement, which incorporates these Customer Terms and the applicable Other Contracts, constitute the sole and entire agreement between Customer and Ecolab regarding Customer’s access to the Platform and use of the Training Services, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding Customers access to the Platform and use of the Training Services.

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22. Registered office

The Platform and the Training Services are operated by Ecolab Inc. whose registered office is at 1 Ecolab Place, St. Paul, MN 55102, USA.