K2 Akademy eLearning Agreement

Version: 20230217

This K2 Akademy eLearning Agreement, together with any addendum(s) or other contract(s) (collectively, the “Agreement”), is between Etactics, Inc. (“Company”) nd the customer who signed up the Offerings (“Customer”), which is effective as of the date of Customer's payment (“Effective Date”). Company and Customer (each individually a “Party” and together the “Parties'') agree to the following terms and conditions:

Definitions
1.1 “Authorized User” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Offerings under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Offerings has been purchased hereunder.
1.2 “Company IP” means the Offerings and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Statistical Reporting and any information, data, or other content derived from Company's monitoring of Customer's access to or use of the Offerings.
1.3 “Offerings” means products and/or services that the Company provides to Customer under this Agreement. Pursuant to the terms and conditions of this Agreement. Customer agrees to purchase and Company agrees to provide to Customer the Offerings at for the price stated as incurred.
Access and Use
2.1 Provision of Access: Subject to and conditioned on Customer's payment of fees and compliance with the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Offerings during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein.
2.2 Use Restrictions: Customer will not use the Offerings for any purposes beyond the scope of the access granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Company IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Company IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Company IP, in whole or in part; (iv) remove any proprietary notices from the Company IP; or (v) use the Company IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.3 Reservation of Rights: Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.
Customer Responsibilities:
3.1 General: Customer is responsible and liable for all uses of the Company IP resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Offerings, and will cause Authorized Users to comply with such provisions.
Fees and Payment:
4.1 Payment Terms: Customer agrees that Company or its designee is authorized to charge Customer’s designated credit or debit card account (“Account”) for the applicable rate for the Offerings selected by Customer. Company will charge Customer’s Account once Customer has confirmed the payment for a one time purchase of the Offerings selected by Customer.. Any charge to Customer's Account issued under this Agreement that is not disputed in good faith by Customer within thirty (30) days of the date of such charge to Customer’s Account will be deemed accepted by Customer and Customer agrees to waive any and all claims related thereto. Customer agrees to pay all reasonable collection costs incurred by Company for Customer’s failure to make payments when due. If Customer fails to make payment with respect to a charge to Customer’s Account for any reason including but not limited to, expiration of Customer’s credit card or debit card, Company’s inability to charge Customer’s credit card or debit card due Customer providing incorrect payment information, such charge will be deemed delinquent and a late charge equivalent to the lesser of 1.5% per month, or the maximum rate permitted by applicable law on the unpaid balance will be payable for each month, or portion thereof, during which the delinquency remains outstanding. Provided, however, Company may alternatively opt to charge $25 per unpaid charge to Customer’s Account. Furthermore, Company reserves the right to suspend the use of the Offerings until Customer pays all past due payments.
4.2 Taxes: Company’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature,other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, value-added, sales, use & withholding taxes, assessable by any jurisdiction whatsoever (collectively,“Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. When Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Company will charge Customer’s Account and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for Taxes assessable against it based on its income, property and employees.
Confidential Information:
5.1 From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party will not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's workforce who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party will promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback
6.1 Company IP: Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
6.2 Feedback: If Customer or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Company on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
Limited Warrant and Warranty Disclaimer
7.1 Company will implement all commercially reasonable efforts to correct any problems with data transmission, processing and/or corruption or delay of data, and/or reporting of results back to Customer. In the event that a documented and reproducible inconsistency in the Offerings is discovered, Company’s sole responsibility will be to use commercially reasonable efforts to correct such inconsistency in a timely manner. Company warrants that the Offerings will conform in all material respects to the service levels set forth herein for a given Offering. Company does not make any representations or guarantees regarding uptime or availability of the Offerings. The remedies set forth in Agreement are Customer's sole remedies and Company's sole liability under the limited warranty set forth in this Section 6(1). THE FOREGOING WARRANTY DOES NOT APPLY, AND COMPANY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
7.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(1), THE COMPANY IP IS PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(1), COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, INTEGRATE WITH CUSTOMER’S SYSTEMS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification:
8.1 Customer will indemnify, hold harmless, and, at Company's option, defend Company from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) incurred by Company resulting from any Third-Party Claim that the customer data, or any use of the customer data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Offerings in a manner not authorized by this Agreement; (iii) use of the Offerings in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Offerings not made by Company, provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
8.2 CEU Directory Disclaimer: Company has no accrediting authority or authorization to offer continuing education units (CEU) to any user, and in no way holds itself out as and shall not be construed by Customer as holding itself out as having such authority or authorization. Further, Customer understands and acknowledges that Company, in no way, represents, warrants, or guarantees that any completion of the Offerings by Customer or any of Customer’s users shall result in any CEU accreditation. Customer shall not hold Company liable under any legal or equitable theory for any issues stemming from Customer’s CEU accreditation efforts. Notwithstanding any obligations set forth in Section 8.1, Customer will indemnify, hold harmless, and, at Company’s option, defend Company from and against any and all losses, damages, liabilities, costs (including reasonable attorneys fees) incurred by Company resulting from any Third-Party Claim arising out of or based on Customers CEU accreditation.
Limitation of Liability
9.1 CUSTOMER WILL NOT HOLD COMPANY LIABLE FOR ISSUES STEMMING FROM INACCURATE DATA THAT CUSTOMER OR ITS CONTRACTORS SUPPLY TO COMPANY. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR OFFERINGS, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. HAVING SUPREMACY OVER OTHER SECTIONS, IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE TIMES THE TOTAL AMOUNTS PAID (EXCLUDING PASSTHROUGH COSTS, FOR EXAMPLE POSTAGE AND MATERIAL COSTS)TO COMPANY UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $25,000, WHICHEVER IS LESS.
9.2 CUSTOMER ACKNOWLEDGES THAT THE ALLOCATION OF RISK IN SECTIONS 6, 7, AND 8, IS REASONABLE, COMPANY WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION, AND COMPANY ESTABLISHES ITS FEES FOR THE OFFERINGS IN RELIANCE UPON SUCH ALLOCATION.
Term and Termination:
10.1 Term: The effective date of this Agreement shall be the date Customer makes its first payment to Company (“the Effective Date”). Customer’s purchase of Offerings is a one time purchase for a single use of the Offerings, and this Agreement shall terminate once Customer has completed its single use of the Offerings.
10.2 Survival: Any terms of this Agreement that by their nature extend beyond its expiration or termination remain in effect until fulfilled.
10.3 Data Retention:
On Standards: Customers' circumstances may necessitate additional training for its workforce members to be in compliance with state, local, or federal laws and regulations or other business practice standards (“Standards”) based on their roles, circumstances, and the nature of Customer’s business. Company expressly disclaims any liability associate with the training sufficiency to meet Standards and disclaims all warranties that it does.
Miscellaneous
12.1 Entire Agreement: This Agreement, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
12.2 Notices: Any notice required or permitted to be given under this Agreement must be sent to the Parties at their respective addresses set forth on the Signature Block of this Agreement (or to such other address that may be designated by the recipient Party) and will be effective upon receipt regardless of the means of delivery.
12.3 Privacy: Customer acknowledges that Company uses Stripe, Inc. for payment processing purposes. Stripe collects and processes personal data, including identifying information about the devices that connect to its services. Stripe uses this information to operate and improve the services to Company, including for fraud detection and prevention. Information on what personal information Stripe collects, and how they use and share personal information can be found on their privacy policy contained in the link provided https://stripe.com/privacy.
12.4 Force Majeure: In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.5 Amendment and Modification; Waiver: No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Provided, however, superseding all other terms, Company may unilaterally update the hosted terms and conditions in its sole discretion and the updated terms become effective in 30 days or whatever is the minimum allowed period by law should the required period be greater than 30 days.
12.6 Severability: If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible.
12.7 Governing Law; Submission to Jurisdiction: This Agreement is subject to and governed by the laws of the State of Ohio and applicable Federal law. The Parties consent to exclusive jurisdiction of any appropriate State or Federal court in Summit County, Ohio or Cuyahoga County, Ohio for any claims arising under this Agreement.
12.8 Counterparts: This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

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