LIFEOLOGY™ SUBSCRIPTION AND SERVICES AGREEMENT

Version 1.0
Last updated: November 15, 2019

Subject to the terms and conditions of this agreement (this “Agreement”), we at LifeOmic Education LLC, a Delaware limited liability company (“we”) provide:

(1) consulting and development services to create informational and educational online, electronic courses (“Courses”) by taking certain research and informational materials that you provide to us (“Course Materials”) and compiling, arranging, formatting and preparing illustrations and copy relating to those Course Materials, as further detailed in your Service Order (the “Course Development Services”);

(2) access to and use of our Lifeology™ web-accessible back-end platform used for hosting and managing Courses, including the functionality and features described in your Service Order (the “Platform”);

(3) a website (the “Site,” and, together with the Platform, the “Software”) through which you may access and use the Platform; and

(4) the other Services described in further detail below.

1. Acceptance. By executing a Service Order with us, you also accept the terms of this Agreement and agree you are legally bound by its terms. The individual registering to use the Platform and our Services on your behalf represents and warrants to us that such individual is fully and duly authorized to agree to be bound by this Agreement on your behalf. If you do not agree to this Agreement, do not execute a Service Order with us, do not register to use the Platform or otherwise access or use any of our Software or Services.

2. Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. Via a conspicuous posting within the Platform itself or via notice by e-mail to the e-mail address we have on file for you, we will notify you of any material changes to this Agreement. If you do not agree with any changes we make to this Agreement, you may exercise your right not to renew our contract as described in the Service Order. Otherwise, changes to this Agreement are effective immediately when we post them, and your continued use of the Software or our Services following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access to or use of the Software if you do not want to agree to the revised Agreement. The date this Agreement was last updated is listed at the top of this page.

3. Our Services.

a. Generally. During the Term, we will provide to you the following services (the “Services”): (i) the Course Development Services specified in your Service Order; (ii) the hosting, management and operation of the Platform for remote electronic access and use by you and your Authorized Users through the Site in accordance with the authorizations granted below; (iii) the Support Services described in Section 5.a below; and (iv) any other Services we expressly agree to provide in your Service Order.

b. Course Development Services.

i. Ownership. As between you and us, you will own the unique compilation and arrangement of the Course Materials and any illustrations, visualizations and copy resulting from our performance of the Course Development Services (collectively, the “Work Product”), as well as the copyright in the Work Product. To the extent possible, all such Work Product will be considered a “work made for hire” for you; to the extent such Work Product is determined not to constitute a “work made for hire” as a matter of law we hereby irrevocably assign and transfer to you, as of the time of creation of the Work Product, the copyright associated with such Work Product and any and all other right, title or interest we may have in or to such Work Product. Upon your request and at your expense, we will take such further actions, including execution and delivery of instruments of conveyance necessary to obtain legal protection in the United States and foreign countries for such Work Product and for the purpose of vesting title thereto in your name, as may be appropriate to give full and proper effect to such assignment and to vest in you complete title and ownership to such Work Product. For the avoidance of doubt, this assignment of rights relating to the Work Product does not include or convey any rights to you in or to our Software or the End User Software (as defined below); your rights to access and use our Software are governed by Section 4 below and end users’ rights to access and use the End User Software are governed by the EULA described in Section 4.c below.

ii. License Rights. You hereby grant to us and our subcontractors all such rights and permissions in or relating to the Course Materials, Work Product and any other data or information you upload to the Platform or provide to us under this Agreement as are necessary to: (i) perform the Services and provide the Software in accordance with this Agreement; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement. In addition:

1. If a particular Course is labeled as “Private” in the applicable Service Order, then you hereby grant to us and our subcontractors, during the Term only, all such rights and permissions in and to the corresponding Course Materials and Work Product as are necessary to host the Course on the Platform for access and use through the End User Software only by the end users that you may designate (such as by providing Course-specific login credentials).

2. If a particular Course is labeled as “Public” in the applicable Service Order, then you hereby grant to us and our subcontractors, on a perpetual and irrevocable basis, all such rights and permissions in and to the corresponding Course Materials and Work Product as are necessary to host the Course on the Platform for access and use through the End User Software by any end users that you or we may designate.

3. If a particular Course is labeled as “Open Source” in the applicable Service Order, then you hereby grant to us and our subcontractors, on a perpetual and irrevocable basis, all such rights and permissions in and to the corresponding Course Materials and Work Product as are necessary to host the Course on the Platform for access and use through the End User Software by any end users that you or we may designate, and, additionally, you agree to make the text, visualizations and illustrations of the Course available to any end users pursuant to the terms of the open source license identified in the applicable Service Order (such as the Creative Commons Attribution-ShareAlike license (CC-BY SA)).

iii. Disclaimer of Professional Advice. You understand, acknowledge and agree with all of the following: The Software is solely a neutral online platform and tool that may be used by researchers, service providers and professionals to host and facilitate their delivery of informational and educational content to end users. All Course Development Services are provided strictly under the guidance and direction of such researchers, service providers and professionals, who ultimately bear responsibility for the content, information and advice contained in the resulting Courses. All other Services are provided solely to facilitate such researches’, service providers’ and professionals’ use of our Software. We are not the author or provider of, and therefore we will not be responsible or liable for (and we do not warrant to you or to any other person the quality, accuracy, suitability, reliability, safety, completeness, legality or usefulness of) the content of any Course Materials. We are not certified, licensed or otherwise qualified to provide, and we do not purport to be certified, licensed or otherwise qualified to provide, and we do not (merely by providing the Software, the Course Development Services or any other Services) offer or purport to offer, any medical, legal, tax, accounting or other professional services or advice to you or to any other person. As between you and us, you, as the research, service-provider or professional organization entering into this Agreement, are solely responsible for the content of all Courses you create (with or without the aid of our Course Development Services) or otherwise choose to make available to end users via the Platform and End User Software, and you are solely responsible for any reliance that any end user may place on such content and any information or advice contained therein. We disclaim all liability and responsibility arising from any reliance placed on such content, information or advice by any end user or by anyone else who may be informed of any of the contents thereof. The availability of any Courses on the Platform does not imply our endorsement of such Courses for the unique needs of any particular person or entity. As between you and us, all statements and/or opinions expressed in any Courses are solely your opinions and solely your responsibility (and not our opinions or responsibility). You must not make any representations, claims or commitments regarding the Software or our Services to any person or entity that are inconsistent with the statements in this Section 3.b.iii. You will indemnify, defend and hold us and our subcontractors and personnel harmless from any third party claim arising from (x) the content, information or advice contained in the Courses you create (with or without the aid of our Course Development Services) or otherwise choose to make available to end users, and (y) allegations that you or your Authorized Users have failed to comply with the immediately preceding sentence of this Section 3.b.iii.

c. Changes to the Software. We may make any changes to the Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason, from time to time in our sole discretion, and without notice to you; provided, however, that we will not make any such changes that will materially adversely affect its features or functionality available to you during the Term. Such changes may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). All Updates will be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto.

d. Subcontractors. We may, in our discretion, engage subcontractors to aid us in providing the Software and performing our Services under this Agreement, but we will remain liable to you for any act or omission by such subcontractors that would be a breach or violation of this Agreement. We currently use Amazon Web Services (the “Hosting Services Provider”) for cloud-based infrastructure and hosting and storage services for the Platform, and such Hosting Services Provider will host and store the Course Materials you provide and any other data or information that you may upload to or process through the Platform. For more information, please visit https://aws.amazon.com/agreement/. You hereby specifically approve and consent to our use of this Hosting Services Provider, or another provider with similar functionality, security and availability in the manner described.

e. Suspension of Services and Software Access. We may suspend or deny your or any Authorized User’s access to or use of all or any part of the Services or Software, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have or any of your Authorized Users has (A) accessed or used the Software in breach of this Agreement (including, for the avoidance of doubt, failure to comply with the limitations and restrictions described in Section 4.b below), (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or the Software, or (C) otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you. We will promptly restore access to the Software and resume our performance of Services as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 10.b or any other rights or remedies under this Agreement, at law or in equity.

4. Right to Access and Restrictions.

a. Platform Authorization. So long as you and your Authorized Users comply with this Agreement, we authorize you, during the Term, and on a non-exclusive and non-transferable (except as described in Section 14.e) basis, to access and use the Platform through the Site, by and through your Authorized Users, solely as (and in the form) in which we have provided the Platform, solely for the Permitted Use, and strictly in accordance with this Agreement and the Documentation.

b. Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Software. You must not, and you must not permit any other person or entity to, access or use the Software except as we’ve specifically allowed in this Agreement and, in the case of any third-party software or materials (including open source components) (“Third-Party Materials”) we provide with the Software, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, you and your Authorized Users must not do any of the following:

i. copy, modify, adapt, translate or create derivative works or improvements of the Software or any portion thereof;

ii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software to any other person or entity for any reason, including by making Software available through any time-sharing, service bureau or software as a service arrangement;

iii. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Software;

iv. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

v. bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the Software;

vi. share an Authorized User’s access credentials with any person or permit use of an Authorized User’s access credentials by any person, other than the Authorized User with whom the access credentials are associated;

vii. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, overburden, interfere with or otherwise impede or harm in any manner (A) the Software, (B) the server on which the Software is stored, (C) any server, computer or database connected to the Software, or (D) our ability to provide services to any other person or entity;

viii. access or use the Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;

ix. access or use the Software for purposes of (A) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Software, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Software; or

x. knowingly aid or assist any Authorized User or other person or entity in taking any of the actions prohibited by this Section 4.b or the EULA (as defined below).

You are responsible for and will be liable for all activities that occur by and through Authorized Users in your Software account and for such persons’ compliance with this Agreement.

c. End User Access. Courses hosted on the Platform are made available for access and use by end users through the Lifeology™ mobile application available for download on iOS- and Android-compatible mobile devices (the “End User App”) or an end user-facing website made available for this purpose (the “End User Site” and, together with the End User App, the “End User Software”). Each end user’s rights, duties and obligations with respect to accessing and using the End User Software on their mobile device or computer are governed by the applicable terms of service accepted and agreed to by such end user during registration with the End User Software, as may be updated from time to time (the “EULA”). For clarity, the EULA governs access to and use of the End User Software by end users, and this Agreement governs access to and use of the Platform and the Site by you and your Authorized Users. Access to and use of the End User Software by your Authorized Users (if at all) is governed by the EULA the same as any other end users accessing and using the End User Software.

5. Support Services and Uptime.

a. Support Services. During the Term, so long as you and your Authorized Users comply with this Agreement, we will provide customer support services to you and your Authorized Users via e-mail and/or a support web portal during our normal support hours (9:00 a.m. to 5:00 p.m., Eastern time, Monday through Friday, but excluding United States federal holidays) (“Support Services”). Support Services include (i) technical and operational assistance for the use of the Software, including responses to general, short-duration questions about the documented features and functionality of the Software and usage thereof, management of user accounts for Authorized Users, assistance with interpretation and use of the Documentation, and assistance with interpretation of error or warning messages appearing in dashboards or alerts, (ii) attempts to respond and resolve any Availability failure in accordance with Section 5.b below and otherwise correct any reproducible failure of the Software to perform in accordance with the Documentation, and (iii) case management to help track the status of any failures reported to us. Support Services do not include (1) support for software or hardware that is not part of the Software (including support for any part of your technology infrastructure or network connections), (2) formal, comprehensive training of Authorized Users on use of the Software (which may be separately provided Services to the extent expressly indicated in a Service Order), (3) on-site dispatch of our personnel, (4) on-site or remote support to configure or customize the Software for you (which may be separately provided Services to the extent expressly indicated in a Service Order), or (5) performance of any Course Development Services or any other professional, implementation, configuration, consulting or advisory services (which may be separately provided Services to the extent expressly indicated in a Service Order). You must provide all information and assistance that we reasonably request in connection with providing such Support Services. We reserve the right to charge you at an hourly rate (on a time-and-materials basis) for support services provided (x) outside of our normal support hours, or (y) in connection with a request we reasonably determine is outside the scope of the Support Services described above.

b. Platform Availability. During the Term, so long as you and your Authorized Users comply with this Agreement, we will make the Platform available for access and use by you and your Authorized Users over the Internet and operating substantially in accordance with the Documentation (“Available”) 24 hours a day, seven days a week, with 99.9% availability (calculated on a minutes per month basis), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). For purposes of calculating the Availability Requirement, the following are “Exceptions,” and the Platform will not be considered un-Available in connection with any failure to meet the Availability Requirement or impaired ability of you or your Authorized Users to access or use the Platform that is due, in whole or in part, to any: (i) access to or use of the Software by you or your Authorized User that does not comply with this Agreement and the Documentation; (ii) your or your Authorized User’s Internet connectivity; (iii) any Force Majeure Event; (iv) any failure, interruption, outage or other problem with any software, hardware, system, network, or other technology infrastructure that was not provided by us or that is not part of our systems (including, for the avoidance of doubt, any failure, interruption, outage or other problem with the Hosting Services Provider); or (v) scheduled downtime for routine maintenance of the Software that occurs outside of our normal support hours or on weekends. If we fail to meet the Availability Requirement described above, we will credit your account in an amount equal to 10% of the Prorated Monthly Fee paid to us for the month in which the failure occurred. THE FOREGOING REMEDIES ARE YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY FAILURE TO MEET THE ABOVE-DESCRIBED AVAILABILITY REQUIREMENT OR OTHER INTERRUPTION OR UNAVAILABILITY OF THE SOFTWARE DURING THE TERM.

6. Confidentiality.

a. General. During the Term and thereafter, each receiving party (each, a “Recipient”) will hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and will not without the Discloser’s written consent disclose Discloser’s Confidential Information to any third party (other than our subcontractors as permitted in Section 3.d above) nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. For clarity: the Software, all non-public information related thereto and the features, functionality and performance thereof are our Confidential Information; any Courses you and we have labeled as “Private” in an applicable Service Order are your Confidential Information; and the terms of this Agreement and any Service Order are the Confidential Information of both of us.

b. Exceptions. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Recipient may disclose Discloser’s Confidential Information to the extent it is legally compelled to do so pursuant to applicable law or the valid order of a court or governmental agency, provided that Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.

7. Fees and Payment.

a. Fees. You will pay to us the fees and charges described in each Service Order (the “Fees”) in accordance with the Service Order and this Section 7. All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement or in the applicable Service Order) all Fees once paid are non-refundable.

b. Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.

c. Payment. You will make all payments in US dollars. You will, upon our request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, you agree that we may charge the Fees using that Automatic Payment Method in accordance with the payment schedule set forth in the Service Order. If instead we invoice you for the applicable Fees, invoiced amounts are due net 30 days from the invoice date unless otherwise specified in the applicable Service Order. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.

8. Ownership and Intellectual Property Rights Related to the Software.

a. Software. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to in and to the Software, including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights, but excluding the Course Materials and Work Product (collectively, the “LifeOmic IP”). We are not granting you any right, license or authorization with respect to any of the LifeOmic IP except as we’ve specifically provided in Section 4 above (and subject to the limitations and restrictions in Section 4.b above). We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the LifeOmic IP.

b. Usage Data. You acknowledge and agree that we may collect metadata, telemetry and other statistical information regarding your Authorized Users’ use of and the performance of the Software (“Usage Data”), such as data on what features and functions in the Software are being used by its users and to what extent. Usage Data does not contain and is not derived from your Confidential Information. You agree that we may use Usage Data in connection with providing Support Services to you and for our internal business purposes (such as monitoring, enhancing and improving the Software), and that we may publish and share with third parties aggregated Usage Data that cannot, by itself or with other data, directly or indirectly, identify you, your Authorized Users, end users or clients or any other individual or entity without that party’s consent.

9. Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks and logos on our website and in other sales and marketing materials in order to factually identify you as a customer of our Software and Services.

10. Term and Termination.

a. Term. The term of this Agreement (the “Term”) commences on the first date you accept this Agreement in accordance with Section 1 above and continues for as long as any Service Order remains in effect or until terminated in accordance with this Agreement.

b. Termination. In addition to any other termination rights described in this Agreement or any Service Order, this Agreement or an individual Service Order may be terminated at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement (or, if an individual Service Order is being terminated, breaches the applicable Service Order) and such breach remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach. Termination of this Agreement will terminate all outstanding Service Orders.

c. Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment or reimbursement) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by us relating to the Software will immediately terminate, (ii) we may disable your and your Authorized Users’ access to the Software, and (iii) we each will cease all use of the other party’s Confidential Information and promptly destroy or (at such other party’s request) return all of the other party’s Confidential Information.

d. Surviving Terms. Sections 3.b.iii (Disclaimer of Professional Advice), 6 (Confidentiality), 8 (Ownership and Intellectual Property Rights Relating to the Software), 10.c (Effect of Termination), 10.d (Surviving Terms), 12 (Indemnification), 13 (Limitations of Liability), 14 (Miscellaneous), 15 (Definitions) and our and our subcontractors’ perpetual license rights to any “Public” or “Open Source” Courses will survive any expiration or termination of this Agreement.

11. Representations and Warranties.

a. By You. You represent and warrant that: (i) with respect to all Course Materials, you either own such Course Materials or you have all rights, permissions and consents from third parties that are necessary to access and use such Course Materials, to permit us, our subcontractors and the Software to access and use such Course Materials as contemplated in this Agreement, and to grant the rights that you grant to us and our subcontractors under this Agreement concerning such Course Materials; (ii) your, our and our subcontractors’ access to and use of the Course Materials as contemplated by this Agreement (including, for the avoidance of doubt, hosting such Course Materials on the Platform as part of the Courses and making such Course Materials available to end users through the End User Software as part of the Courses) does not and will not violate any applicable law or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right, right of publicity or other right of any third party.

b. By Us Regarding our Services. We warrant that we will perform all Services in a professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with generally-accepted standards of quality in our industry. If we breach this warranty, we will promptly re-perform the non-conforming Services at no additional cost to you. THE FOREGOING IS YOUR EXCLUSIVE REMEDY, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY BREACH OF THE WARRANTY PROVIDED IN THIS SECTION 11.b.

c. By Us Regarding Our Software. We warrant that: (i) the Software will at all times during the Term substantially conform in all material respects to the specifications set forth in your Service Order and its Documentation, and (ii) we have used and will continue to use all reasonable efforts consistent with industry best practices to ensure that the Software does not contain (and will not introduce) any Harmful Code into any of your devices, software, systems or telecommunications equipment. The warranties in this Section 11.c do not apply to any non-conformance resulting from: (x) your use of the Software in a manner inconsistent with this Agreement or its Documentation, (y) the operation of or access to your or a third party’s system or network, or (z) any Third-Party Materials.

d. Remedy for Breach of Software Warranty. If we breach the warranty set forth in Section 11.c, we may, at our sole option and expense, take any of the following steps to remedy such breach: (i) modify, fix or correct the Software to remedy such non-conformity; (ii) replace the non-conforming portion of the Software, as applicable, with functionally equivalent software (which software will, on such replacement, constitute Software hereunder); and (iii) if the remedies in clauses (i) and (ii) are not feasible by commercially reasonable standards, terminate the applicable Service Order and promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination. If we do not cure a warranty breach or terminate this Agreement as permitted by the immediately preceding sentence within 30 days after our receipt of written notice of such breach, you will have the right to terminate the applicable Service Order and we will promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination. THE REMEDIES SET FORTH IN THIS SECTION 11.d ARE YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY BREACH OF THE WARRANTY PROVIDED IN SECTION 11.c.

e. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTIONS 11.b AND 11.c, AND EXCEPT FOR THE AVAILABILITY REQUIREMENT SET FORTH IN SECTION 5.b ABOVE, ALL SERVICES AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE SOFTWARE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE SOFTWARE OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

12. Indemnification.

a. By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the Software or Work Product (excluding Course Materials) or your use thereof or use thereof by end users, infringe any U.S. patent, copyright or trademark of such third party, or misappropriate the trade secret of such third party (each, an “Infringement Claim”). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software or Work Product in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us), where the Infringement Claim would not arise but for such combination; (ii) modifications or configurations made to the Software or Work Product by anyone other than us (or a party acting under our direction) without our prior written consent; or (iii) any action taken by you or any Authorized User relating to use of the Software or Work Product that is in breach of this Agreement.

b. By You. You will defend us and our subcontractors and personnel from and against any Claims brought by a third party, and you will indemnify and hold us and our subcontractors and personnel harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you or your Authorized Users have breached any representation or warranty in Section 11.a.

c. Mitigation. If the Software or Work Prodcut are, or in our opinion are likely to be, the subject of an Infringement Claim, or if your or any Authorized User’s use of the Software or Work Product is enjoined or threatened to be enjoined, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the allegedly infringing Software or Work Product as contemplated by this Agreement, (ii) modify or replace the allegedly infringing Software or Work Product to make such Software or Work Product (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate the applicable Service Order upon written notice and without any liability to you and we will promptly refund to you on a pro rata basis (x) with respect to allegedly infringing Software, the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination, and (y) with respect to any allegedly infringing Work Product an amount of the Course Development Services fees actually paid to us by you for the allegedly infringing Work Product calculated by amortizing on a straight-line basis assuming a seven-year useful life for the Work Product.

d. Sole Remedy. THIS SECTION 12 SETS FORTH YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE WORK PRODUCT AND THE SOFTWARE) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE TO YOU, TO YOUR SUBSIDIARIES OR AFFILIATES OR TO YOUR OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, AGENTS OR ASSIGNS FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST US HEREUNDER. UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. The exclusions and limitations in this Section 13 will not apply to our breach of our confidentiality obligations under Section 6 or our indemnification obligations under Section 12.

14. Miscellaneous. (a) Entire Agreement. This Agreement and each Service Order together constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). (b) Amendment, Severability and Waiver. Except as expressly set forth in Section 2 above, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. (c) Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of Indiana, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Indianapolis, Indiana, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. (d) Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the most recent Service Order. (e) Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. (f) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (g) Relationship of the Parties. The relationship between the parties is that of independent contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. (h) Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation), criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party’s reasonable control (each, a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either party may terminate this Agreement if a Force Majeure Event affecting the other arty continues substantially uninterrupted for a period of 30 days or more. (i) Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 4.b (Limitations and Restrictions), Section 6 (Confidentiality) or Section 8 (Intellectual Property Rights) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. (j) Conflict in Terms. If there is a conflict between this Agreement and any Service Order, the terms of the Service Order shall govern the provision of the Software or the Services involved; provided, however, that nothing in a Service Order may modify or supersede anything in Sections 4.b (Limitations and Restrictions), 8 (Ownership and Intellectual Property Rights), 11 (Representations and Warranties), 12 (Indemnification), 13 (Limitation of Liability), or 14 (Miscellaneous) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the applicable Service Order and the parties have expressly agreed in such Service Order to modify or alter the relevant provision of this Agreement.

15. Other Definitions. Capitalized and other terms that are used in this Agreement have the meanings described below:

Authorized User” means your direct employees, contractors and agents who have registered to use the Platform and to whom we have provided access codes to log-in to the Platform through the Site. The maximum number of Authorized Users permitted to access and use the Software on your behalf as part of your subscription is as set forth in your Service Order (if any maximum number of Authorized Users is so specified in your Service Order).

Claim” means any investigation by a governmental body, claim, suit, action or proceeding.

Documentation” means the then-current online, electronic and written user documentation and guides we make available to you and to Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.

Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.

Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.

Permitted Use” means hosting and managing Courses for access and use by end users.

Prorated Monthly Fee” means either (a) if your Platform subscription fees are being billed on a monthly basis, the monthly subscription fee actually paid by you for the month in which the failure of Availability occurred, and (b) if your Platform subscription fees are being billed on an annual basis, 1/12th of the annual subscription fee actually paid by you for the year in which the month with the failure of Availability occurred.

Service Order” means the Service Order executed by you and us that references this Agreement, and which is incorporated into this Agreement for all purposes.

You” and “your” as used throughout this Agreement refers to the party (other than us) entering into this Agreement to obtain a subscription to our Software and Services.