Terms and Conditions

THE ACCUSKILLS™ WEB SITE IS INTENDED FOR USE ONLY FOR LAWFUL PURPOSES. BY SUBSCRIBING TO THIS SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS AND CONDITIONS OF USE. YOU ALSO AGREE TO REVIEW THIS AGREEMENT PERIODICALLY IN ORDER TO BE AWARE OF MODIFICATIONS TO THE AGREEMENT, WHICH MODIFICATIONS AccuSkills.com MAY MAKE FROM TIME-TO-TIME AND AT ANY TIME. YOUR CONTINUED ACCESS TO OR USE OF THIS SITE WILL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF ANY MODIFIED AGREEMENT.

Parties

Quantus Pictures, Inc., incorporated and registered in Ohio whose registered office is at 2257 N Fairview St., Burbank CA 91504, shall herein be referred to as “Supplier.”

You, the user, shall herein be referred to as “Customer.”

Background

The Supplier has developed certain software applications and platforms at AccuSkills.com, which it makes available to subscribers via the Internet on a pay-per-use basis for the purpose of creating, administering, and enrolling in online training.
The Customer wishes to use the Supplier's service in its business operations.
The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's Services subject to the terms and conditions of this Agreement.

Agreed Terms

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

(a) Authorized Users: those employees, agents, instructors, students, and independent contractors of the Customer who are authorized by the Supplier to use the Services and the Documentation.

(b) Business Day: any day which is not a Saturday, Sunday, or public holiday in the United States

(c) Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of related transactions.

(d) Confidential Information: information that is proprietary or confidential and is either clearly labeled as such or otherwise identified as Confidential Information.

(e) Customer: the organization, instructor, and students licensing the Services.

(f) Customer Data: the data inputted by the Customer, Authorized Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

(g) Documentation: the document made available to the Customer by the Supplier online via www.accuskills.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

(h) Effective Date: the date which the Customer first accesses the Services.

(i) Initial Subscription Term: the initial subscription term as selected by the Customer.

(j) Normal Business Hours: 10:00 am to 5.00 pm Pacific Standard Time, each Business Day.

(k) Renewal Period: the period described in each subscription tier.

(l) Services: the subscription services provided by the Supplier to the Customer under this Agreement via www.accuskills.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.

(m) Services Order Form: the order, whether online or via phone, which Customer uses to request services from Supplier.

(n) Software: the online software applications provided by the Supplier as part of the Services.

(o) Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions.

(p) Subscription Term: the duration of the subscription

(q) Support Services Policy: the Supplier's policy for providing support in relation to the Services as made available at www.accuskills.com or such other website address as may be notified to the Customer from time to time.

(r) User Subscriptions: the user subscriptions purchased by the Customer pursuant to this Agreement, which entitles Authorized Users to access and use the Services and the Documentation in accordance with this Agreement.

(s) Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

1.2 Clause, schedule and paragraph headings, numbering, or references shall not affect the interpretation of this Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4 A reference to a company shall include any company, corporation or other entity, wherever and however incorporated, organized, or established.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written excludes faxes and e-mails.

1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

2. SAAS SERVICES AND SUPPORT

2.1 Subject to the terms of this Agreement, Customer will identify an administrative user name and password for Customer’s account. Supplier reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

2.2 Subject to the Customer purchasing the User Subscriptions in accordance with the restrictions set out in this clause, and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorized Users to use the Services during the Subscription Term solely for the Customer's internal business operations. In relation to the Authorized Users, the Customer undertakes that:

(a) If the maximum number of Authorized Users that Supplier authorizes to access and use the Services exceeds the number of User accounts Customer has purchased, then Customer agrees to an additional charge which will be added to the next invoice;

(b) it will not allow any User Subscription to be used by more than one individual Authorized User;

(c) each Authorized User shall keep a secure password for his use of the Services, and that each Authorized User shall keep his password confidential;

(d) students may only use the Services via the assigned student account and instructor may only use the Services via the assigned instructor accounts;

(e) it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorized User. This right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's use of the Services or the normal conduct of business;

(f) if any of the audits reveal that any password has been provided to any individual who is not an Authorized User, then the Customer shall promptly disable such accounts or the Customer agrees the duplicate accounts shall be included in the number of Authorized Users.

(g) if any of the audits reveal that the Customer has underpaid Subscription Fees to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices as defined in the Subscription Tiers within 10 Business Days of the date of the relevant audit.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Supplier or authorized within the Services); use the Services or any Software for timesharing or otherwise for the benefit of a third; or remove any proprietary notices or labels.

3.2 The Customer shall not knowingly access, store, distribute, or transmit any Viruses, or knowingly access, store, distribute or transmit any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially, sexually, or ethnically offensive;

(b) violates copyright law;

(d) depicts sexually explicit images;

(e) promotes unlawful violence;

(f) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or

(g) causes damage or injury to any person or property;

and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to any material, edit any material, or delete any material that breaches the provisions of this clause.

3.3 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

1) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

2) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(d) subject to, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Agreement; and

(f) The Customer shall use all commercially reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify the Supplier.

(g) The rights provided under this clause are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3.4 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

3.5 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Supplier’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Supplier against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s or Authorized User’s use of Services. Although Supplier has no obligation to monitor Customer’s use of the Services, Supplier may do so and may prohibit any use of the Services by Customer in violation of the foregoing.

3.6 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer shall be responsible for ensuring a consistent Internet connection and assumes sole responsibility for Internet speeds, firewalls, Internet access, Wi-Fi connectivity and stability, and any other means by which to access the Services.

4. ADDITIONAL USER SUBSCRIPTIONS AND FEES

4.1 The Customer may during the Subscription Term, purchase additional User Subscriptions (student accounts) in excess of the number set out in the Services Order Form and the Supplier shall grant access to the Services and the Documentation to such additional Authorized Users in accordance with the provisions of this Agreement.

4.2 Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Services Order Form and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), the total fee shall not be pro rated. Such fees shall be added each month, for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4.3 Customer may request at the end of the Initial Contact Term or any Renewal Period a review of all User Accounts and may, at the Customer’s sole discretion, delete unused User Accounts. However until the end of the Initial Contract Term or any Renewal Periods, the number of student accounts cannot be reduced, regardless of usage.

4.4 Upon deletion of any User Account, all related data associated with that account including but not limited to the user’s username and password, profile, class and course history, grades, certification, and site activity will be permanently deleted.

4.5 Customer shall hold Supplier harmless from liability for any data lost or deleted if Customer deletes User Accounts.

4.6 Customer will pay the specified price for any and all lessons, in-person classes, and online courses licensed from other AccuSkills customers via the Lesson Marketplace or Network Sharing. Even if used for internal training, lessons licensed on the Lesson Marketplace or through Network Sharing are not included in the monthly or annual payment plans and will be billed to Customer as an additional charge.

4.7 If Customer chooses to license lessons on the Lesson Marketplace or through Network Sharing, Customer may set the price for each lesson and will earn 100% of the set price when lessons are licensed by other institutions from the Lesson Marketplace or through Network Sharing.

4.8 Customer shall be solely responsible for any costs incurred in URL mapping the Services to Customer’s own domain name, including but not limited to, obtaining and registering the web domain, obtaining and managing any necessary SSL certificates, obtaining and managing any and all required hosting services, obtaining and managing the necessary internal networks, data infrastructure, third party accounts, and hardware.

(a) Supplier will provide, upon Customer’s request, optional IT support services to assist in the URL mapping process at $100/hour.

5. SERVICES

5.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

5.2 The Supplier shall use commercially reasonable efforts to make the Services available for 99.9% of the Contract Term, measured monthly, excluding scheduled maintenance. Any downtime resulting from outages of third party connections or utilities or other reasons beyond Supplier’s control will be excluded from any such calculation.

5.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may reasonably amend the Support Services Policy from time to time, provided that no such amendment shall materially reduce the level of support provided. Customer Support Services shall include:

(a) Supplier will provide technical support to Customer via electronic mail on weekdays during the hours of 10:00 am through 5:00 pm Pacific Standard Time, with the exclusion of Federal Holidays (“Support Hours”).

(b) Customer’s Admin may contact Supplier via telephone. Instructors and students may initiate a help desk ticket at any time through the AccuSkills Help Center. Help requests sent via e-mail are not guaranteed to be addressed.

6. CUSTOMER DATA

6.1 Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2 Supplier shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with reasonable archiving procedures. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

6.3 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at www.accuskills.com or such other website address as may be notified to the Customer from time to time, as such document may be reasonably amended from time to time by the Supplier in its sole discretion.

6.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the United States or the country where the Customer and the Authorized Users are located in order to carry out the Services and the Supplier’s other obligations under this Agreement;

(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;

(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) the Supplier shall transfer, process, and store the personal data only in accordance with applicable laws and the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

(e) each party shall take appropriate technical and organizational measures against unauthorized or unlawful transferring, processing, or storing of the personal data or its accidental loss, destruction or damage.

6.5 Customer shall grant permission to Authorized Users to access any Customer Data associated with the content of any lesson, class, or course, or Customer’s use of the Services subject to the terms of this Agreement.

6.6 Customer releases Supplier from any and all liability, copyright, or claim that may arise from the use of Customer Data in accordance with this Agreement and applicable laws in any lesson, class, or course.

6.7 If Customer licenses lessons on the Lesson Marketplace or through Network Sharing, Customer shall grant permission to any institution, instructor, or student to purchase and use the lesson in their use of the Services.

(a) Customer shall grant permission for instructors from other institutions using the Services to preview any lesson sold on the Lesson Marketplace or through Network Sharing.

(b) By licensing lessons on the Lesson Marketplace or through Network Sharing, Customer shall extend all rights and licenses to any Authorized User of the lesson content, provided such use fulfills the terms of this Agreement.

6.8 In the event Customer deletes lesson, classes, or courses, any currently-enrolled students shall be permitted to continue and complete said class/course until the termination date of such class or course. However, any deleted class, course, or lesson, will, from that time forward, not be available to new students or instructors to join or access.

7. THIRD PARTIES

7.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites, APIs, plug-ins, and/or licensed code and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third party is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s terms and conditions and privacy policy prior to using services provided by the relevant third-party. The Supplier does not endorse or approve any third party nor the content of any of the third party made available via the Services.

7.2 Third party Users may upload content that may include, but not be limited to training, educational, and entertainment-based materials. The Customer acknowledges that Supplier does not pre-screen third party materials or content. Supplier is not the publisher or speaker of any information on the Site that is provided by third party content providers, and Supplier is not liable for any claims related to such information. Content provided by third parties is for informational purposes only and constitutes neither an endorsement nor a recommendation by Supplier. Supplier assumes no responsibility for those products or services.

7.3 Third party content may contain links and references to other third party websites and materials. Supplier assumes no responsibility for these websites or materials and provides these links or materials solely for the convenience of Users. Supplier does not endorse or otherwise recommend any of these third party websites, references, or the products, services, or information there offered. Supplier reserves the right to terminate any link or remove any reference found on the Site at any time.

7.4 SUPPLIER MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, OF THE ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION PROVIDED ON THE SITE. THIS INCLUDES, BUT IS NOT LIMITED TO, VIDEOS, POWERPOINTS, UPLOADED FILES, WRITTEN CONTENT, PHOTOS, ILLUSTRATIONS, OR ANY INFORMATION FOUND ON A LINK LOCATED ON THIS SITE THAT ALLOWS USERS TO ACCESS INFORMATION FOUND ON ANOTHER SITE. ADDITIONALLY, SUPPLIER DOES NOT WARRANT THE EXISTENCE OR FUNCTIONALITY OF ANY SITE WHICH CAN BE ACCESSED THROUGH A LINK LOCATED ON THIS SITE.

8. SUPPLIER’S OBLIGATIONS

8.1 The Services will be performed in a timely manner in accordance with the Documentation and with reasonable skill and care.

8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with a comparable alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, the Supplier:

(a) does not warrant that Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet Customer's requirements; and

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.3 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

8.4 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.

9. CUSTOMER'S OBLIGATIONS

9.1 The Customer shall:

(a) provide the Supplier with:

1) reasonable co-operation in relation to this Agreement; and

2) reasonable access to such information as may be reasonably required by the Supplier in order to render the Services, including but not limited to Customer Data, security access information and configuration services;

(b) Comply with all applicable laws and regulations with respect to its activities under this Agreement;

(c) carry out all other Customer responsibilities set out in this Agreement in a timely manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement;

(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement; and

(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and

(g) be solely responsible for any and all user data uploaded by Customer and Customer’s Authorized Users and ensure that such user data is not in violation of copyright law, or is in violation of any terms of this Agreement.

10. LIMITATION OF LIABILITY

10.1 This clause sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of this Agreement;

(b) any use made by the Customer of the Services and Documentation or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

10.2 Except as expressly and specifically provided in this Agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier, customers who have licensed content through the Service, or third party providers shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

(b) Customer releases Supplier, Customers, and third parties from any liability that may arise from the use of the content provided on the Platform including, but not limited to, injury, death, financial loss, property damage, theft, and malpractice;

(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

(d) the Services and the Documentation are provided to the Customer on an "as is" basis.

10.3 Nothing in this agreement excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier's negligence;

(b) for third party claims that the Services infringe upon any patent, copyright, trade mark, database right, right of confidentiality, or other intellectual property rights of any person; or

10.4 Subject to clause 10.2 and clause 10.3:

(a) Except for the Supplier’s indemnification obligations, the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

(b) Except for the Supplier’s indemnification obligations, the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to Subscription Fees paid for the User Subscriptions during the 1 month immediately preceding the date on which the claim arose.

11. CONFIDENTIALITY; PROPRIETARY RIGHTS

11.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Supplier includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Supplier to enable the provision of the Services (“Customer Data”).

11.2 The Receiving Party agrees

(a) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and

(b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any of the Disclosing Party’s Proprietary Information.

11.3 The Disclosing Party agrees that

(a) the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof,

(b) is or becomes generally available to the public, or

(d) was rightfully disclosed to it without restriction by a third party, or

(e) was independently developed without use of any Proprietary Information of the Disclosing Party or

(f) is required to be disclosed by law.

11.4 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Supplier shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.

11.5 Notwithstanding anything to the contrary, Supplier shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Supplier will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Supplier offerings.

11.6 Customer hereby grants to Supplier the non-exclusive right, in perpetuity and throughout the universe, to use Customer’s name and logo in connection with the advertising and marketing of the Service.

12. PAYMENT OF FEES

12.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with the Services Order Form.

12.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a) its credit card details to the Supplier, the Customer hereby authorizes the Supplier to bill such credit card:

1) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

2) on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

3) 3% of the invoice total or any relevant credit card processing fees, whichever is lower.

(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:

1) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

2) at least 60 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 60 days after the date of such invoice.

12.3 If the Supplier has not received payment within 10 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on such due amounts at an annual rate equal to 2.5% at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment; and

(c) the Supplier shall permit students enrolled in any active classes or courses to complete said class or course until the termination date of said class of course or within 3 months of the due date, whichever is sooner.

12.4 All amounts and fees stated or referred to in this Agreement:

(a) shall be payable in US Dollars;

(b) are, non-cancellable and non-refundable;

(d) are exclusive of any regionally, State, or Federally provisioned taxes.

12.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees will be billed at $10 per month per gigabyte of storage, with storage rounded up to the next gigabyte.

12.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased, and/or the excess storage fees payable at the start of each Renewal Period upon 30 days' prior notice to the Customer.

13. CREDIT CARD PROCESSING

13.1 Supplier will provide optional third party credit card processing services via Stripe.com integrated into the Services for the purposes of allowing Customer to collect monies from Authorized Users for any “Student Pays” class or course (“Transaction”).

13.2 Customer is fully responsible for and releases Supplier from and against any and all liability for:

(a) A Chargeback, Refund, over-payment, payment error, or other invalid payment Customer or Customer’s Authorized Users cause (collectively “Invalidated Payment”);

(b) any error, negligence, misconduct or fraud by Customer, Customer’s employees, Customer’s Authorized Users, or someone acting on Customer’s behalf; and

(c) any losses resulting from Customer’s failure to comply with the terms of this Agreement, terms and conditions of Stripe.com.

13.3 If Supplier has reasonable suspicion that a Transaction poses an unacceptable level of risk, that the Customer or Customer’s Authorized Users have breached the terms of this Agreement, or that Customer’s account has been compromised, Supplier may take various actions to avoid liability. The actions Supplier may take include, but are not limited to,

(a) suspending or limiting Customer’s ability to use the Credit Card Processing Services,

(b) refusing to process any Transaction, reversing a Transaction, holding Customer’s Payouts, and

(c) contacting the Authorized User in question to verify Transactions and reduce potential fraud and disputes. If possible, Supplier will provide Customer with advance notice of Supplier’s actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.

13.4 Customer shall pay, indemnify, and hold Supplier harmless from

(a) any sales, use, excise, import or export, value-added, or similar tax or duty with respect to fees paid by Customer to Supplier, and any other tax or duty not based on Supplier’s income with respect to fees paid by Customer to Supplier, and

(b) all government permit fees, customs fees and similar fees which Supplier may incur with respect to the Services provided to Customer pursuant to this Agreement. Such taxes, fees and duties paid by Customer shall not be considered a part of, a deduction from, or an offset against, payments due to Supplier hereunder.

13.5 By using the Credit Card Processing Services, Customer will not:

(a) Breach this Agreement, Customer’s bank agreement, Stripe’s Terms and Conditions, or any other agreement that Customer has entered into with Supplier in connection with the credit card processing services;

(b) Violate any federal, state, or local laws, rules, or regulations applicable to Customer’s business;

(c) Violate any rule, guideline, or bylaw of any of the Associations (the “Association Rules”), as they may be amended by the Associations from time to time. Some of the Association Rules are available for Visa, Mastercard, American Express, and Discover.

(d) Fail to provide Supplier with any information that Supplier reasonably requests about Customer or Customer’s business activities, or provide Supplier with false, inaccurate or misleading information;

(e) Refuse to cooperate in a legal investigation or audit that may be required by the Associations;

(f) Integrate or use any of the Supplier’s credit card processing capabilities without complying with Supplier’s reasonable requirements;

(g) Utilize recurring billing functionality without properly obtaining Authorized User’s consent to be billed in such a manner;

(h) Submit any Transaction for processing through the Supplier’s credit card processing services which does not represent a bona fide, permissible Transaction as outlined in this Agreement and in the Association Rules, or which inaccurately describes the product or services being sold or the charitable donations being made; and

(i) Process Transactions or receive payments on behalf of any other party, or redirect payments to any other party.

13.6 Customer agrees to indemnify, defend, and hold harmless Supplier, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) Supplier may suffer or incur as a result of

(a) Customer’s breach of Article 13;

(b) Customer’s use of the Credit Card Processing Services in breach of this Article; and/or

(c) Customer’s violation of any applicable law, regulation, or Association Rules and requirements in connection with Customer’s use of the Credit Card Processing Services.

14. TERM AND TERMINATION

14.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

14.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ prior notice to the other party, if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination, Supplier may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

15. WARRANTY AND DISCLAIMER

15.1 Supplier shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Supplier or by third-party providers, or because of other causes beyond Supplier’s reasonable control, but Supplier shall provide advance notice to Customer in writing or by e-mail of any scheduled service disruption. However, Supplier does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND SUPPLIER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

15.2 USER ACCESSES THIS SITE AT HIS OR HER OWN RISK. THE SITE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS ARE SPECIFICALLY DISCLAIMED. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL SUPPLIER OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, THIRD PARTY CONTENT PROVIDERS OR ASSIGNS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSSES. YOUR USE OF THIS SITE IS AT YOUR SOLE RISK AND ANY CONTENT THAT YOU DOWNLOAD IS DOWNLOADED AT YOUR OWN DISCRETION AND RISK AN YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM IN EXCESS OF THE AMOUNT SUPPLIER RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE, AND FOR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES. IN NO EVENT WILL SUPPLIER BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT SUPPLIER RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE, EVEN IF SUPPLIER SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF SUPPLIER, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. SUPPLIER. IS NOT LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THIS SITE.

15.3 BY ACCESSING THIS SITE, CUSTOMER RELEASES SUPPLIER, ITS OWNERS, LICENSEES, INSTRUCTORS, CONTRIBUTORS, CUSTOMERS, HEIRS, ASSIGNS, VENDORS, AND AFFILIATED THIRD PARTIES FROM RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION CONTAINED ON THE PLATFORM. THE MATERIALS AND CONTENT CONTAINED ON THE PLATFORM ARE FOR REFERENCE ONLY AND ARE NOT INTENDED FOR APPLICATION OR IMPLEMENTATION. ALWAYS CHECK WITH AN ATTORNEY BEFORE USING ANY OF THE DOCUMENTATION PROVIDED. CUSTOMER ASSUMES ALL RISK AND LIABILITY FROM USE CONTENT AND INFORMATION PROVIDED ON THE PLATFORM.

16. INDEMNITY

16.1 The Customer shall defend, indemnify and hold harmless the Supplier against third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer and/or Authorized User’s use of the Services and/or Documentation in breach of this Agreement, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) the Supplier provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and

16.2 The Supplier shall defend the Customer, its officers, directors and employees against any third party claim that the Platform infringes any patent, copyright, trade mark, database right, right of confidentiality, or other intellectual property right, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) the Supplier is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to the Supplier in the defense and settlement of such claim, at the Supplier's expense; and

16.3 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on five Business Days’ prior notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

16.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a) a modification of the Services or Documentation by anyone other than the Supplier; or

(b) the Customer's use of the Services or Documentation in breach of this Agreement.

16.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right, right of confidentiality, or other intellectual property right.

16.6 Supplier shall not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may affect Customer’s computer equipment, computer programs, data, or other proprietary material due to Customer’s use of the Services or the service or items obtained through the Services or to Customer’s downloading of any material posted on it or any website linked to it.

16.7 Supplier shall not be liable for damages of any kind, under any legal theory, arising out of or in connection with Customer’s use or inability to use the services or any websites associated with it, including any direct, indirect, special, incidental, consequential, or punitive damages, including but not limited to personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract, or otherwise.

17. LIMITATION OF LIABILITY

17.1 This clause sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of this agreement;

(b) any use made by the Customer of the Services and Documentation or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

17.2 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

17.3 Subject to clause 10.2 and clause 10.3:

(a) the Supplier shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

(b) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to one month Subscription Fees paid for the User Subscriptions during the [12] months immediately preceding the date on which the claim arose.

18. TERM AND EFFECT OF TERMINATION

18.1 This agreement shall, unless otherwise terminated as provided in this Agreement, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods equal to the Initial Subscription Term, unless:

(a) Customer cancels auto-renew through Customer’s AccuSkills account before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this agreement;

(c) and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

18.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach.

18.3 On termination of this Agreement for any reason:

(a) all licenses granted under this Agreement shall immediately terminate;

(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and

(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial efforts to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

19. FORCE MAJEURE

19.1 Neither party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes involving a third party, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, or default of suppliers or sub-contractors, provided that the affected party notifies the other party of such an event.

20. WAIVER

20.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

20.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

21. SEVERANCE

21.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22. ENTIRE AGREEMENT

22.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

22.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

23. ASSIGNMENT

23.1 Neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

24. NO PARTNERSHIP OR AGENCY

24.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

25. THIRD PARTY RIGHTS

25.1 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).

26. NOTICES

26.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.

26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

27. GOVERNING LAW

27.1 Customer and Supplier agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between the parties, except as otherwise stated in this Agreement.

27.2 Customer and Supplier agree that any and all disputes or claims that have arisen or may arise between the parties shall be resolved exclusively through final and binding arbitration, rather than in court, except that either party may assert claims in small claims court, if the claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.

27.3 THE PARTIES ALSO AGREE THAT CUSTOMER AND SUPPLIER MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH CUSTOMER AND SUPPLIER AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER SUPPLIER’S CUSTOMERS.

27.4 The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement shall still apply.

27.5 The arbitration shall be held in the county in which Supplier’s offices are located or at another mutually agreed location. If the value of the relief sought is $10,000 or less, Customer or Supplier may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Customer and Supplier subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, Customer and/or Supplier may attend by telephone, unless required otherwise by the arbitrator(s).

27.6 The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different merchants, but is/are bound by rulings in prior arbitrations involving the same merchant to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

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