Customer Master Terms

 

Last Updated: 07/13/2021

We update these Master Terms from time to time. If you have an active subscription, we will let you know by email when we update the terms.

This Master Terms and Conditions (these “Master Terms”) by and between Applied Concepts, LLC, a Delaware limited liability company located at 55 Skyline Drive, Suite 2200, Lake Mary, FL 32746 (“Applied Concepts,” “we,” “us,” or “our”), and the customer identified on a signed Order Form (“Customer” or “you”), governs your access to our Coaching Platform (the “Platform”) and any other Service(s) provided by Applied Concepts to Customer. These Master Terms, Order Form(s), exhibits or statements of work(s) separately executed by the parties, and other documents expressly incorporated herein or incorporating these Master Terms are collectively referred to as this “Agreement.”  Unless specified to the contrary in an Order Form, this Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).

You accept this Agreement by executing the Order Form, through use of the Services, or by continuing to use the Services after being notified of a change to these Master Terms.

  1. Use, Access & Modification of the Services.
    • Subject to your timely payment of applicable fees, we will provide the Services. We will use commercially reasonable efforts to make the Services available during our normal business hours, except during any circumstances beyond our reasonable control or scheduled or unscheduled emergency maintenance. Except as expressly set forth in the Order Form, any professional Services provided to you are our standard professional Services, and additional Services beyond our standard professional Services will be provided only pursuant to a mutually agreed upon amendment to an Order Form or a separate Order Form. Any such other professional Services will be billed at our then-current, times and materials commercial rates.
    • You acknowledge that we may modify the features, availability, and functionality of the Services (in whole or in part) during the Term, provided that we will use commercially reasonable efforts to provide you with advance notice (which may be by email) of any material degradation of the foregoing.
    • User Management. Access to and use of the Services is restricted to the specified number of individual users permitted under your subscription to the applicable Service. Users may in no event be individuals outside of your direct employment. You agree and acknowledge that a user login cannot be shared or used by more than one (1) individual per account. However, user logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You are responsible for maintaining the confidentiality of all user login information for your account. You and your authorized users will access and use the Services solely in accordance with the conditions and limitations set forth in this Agreement and any Services documentation, including any end user license agreement applicable to the Platform. The authorization set forth in this paragraph is non-exclusive and non-transferable. You will be solely and exclusively responsible for any breach of this Agreement by your “Representatives” which, for purposes of this Agreement, means your authorized users and any other persons accessing the Services directly or indirectly through you, whether authorized, unauthorized or otherwise in breach of this Agreement, or of any terms contained in any Services documentation.
    • System Requirements. For most of our Services, high-speed internet connection is required for proper and effective use. You are responsible for procuring and maintaining the network connections that connect your network to the Platform including, but not limited to, browser software that supports protocols used by us and to follow procedures for accessing services that support such protocols. We are not responsible for notifying you of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Customer Information, transmitted across computer networks or telecommunications facilities which are not owned, operated or controlled by us. We assume no responsibility for the reliability or performance of any connections as described in this Section. You acknowledge and agree that failure to meet any applicable technical requirements of or relating to the Services (including any restrictions or caps on data storage or usage) may cause the Platform or other portions of our Services to (in whole or in part) be unavailable, or function ineffectively or inappropriately. We will in no event be responsible for any downtime, losses, failures or liabilities that arise as a result of your failure comply with the requirements set forth in this Section.
    • Restrictions on Use. You will not, and will not permit others to, directly or indirectly: (i) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, including the Platform and/or any related software, documentation or data (collectively, “Technology”); (ii) modify, translate, or create derivative works of, from or otherwise based on the Services, including the Platform or any Technology, in whole or in part (except to the extent expressly permitted by us or authorized within the Platform); (iii) access and/or use the Services for timesharing or reselling purposes or otherwise for the benefit of a third party; (iv) upload to or otherwise use any of the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party rights, including privacy rights; (v) upload to or otherwise use any of the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses); (vi) interfere with or disrupt the integrity or performance of any of the Services (in whole or in part); (vii) attempt to gain unauthorized access to any of the Services, including the Platform or the Technology or any of their related systems or networks, or access or use the Services other than by an authorized user through the use of his or her own then valid access credentials; (viii) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (ix) frame or mirror the whole or any part of the Services (including the Platform or any Technology); (x) access the Services, including the Platform and/or the Technology (in whole or in part) in order to build a competitive product or service;  (xi) remove any proprietary notices or labels of or from any of the Services, including the Platform or the Technology; or (xii) access or use any of the Services in any way that violates this Agreement, any third party rights, or any applicable laws, rules, regulations or orders having the force of law (collectively, “Laws”).
    • Your Cooperation. You will cooperate with us in all respects, including provision of information and support as may be reasonably required for purposes of our performance under this Agreement. Without limiting the generality of the foregoing, you will ensure that your information technology team responds to any request for information, materials or cooperation from us promptly and without undue delay, and in any event, within two business days of the request. For the avoidance of doubt, you will be responsible for payment for additional hours of work caused by any delay or failure caused in whole or in part by you at the rates in effect for the relevant professional Services at the time of such delay or failure.
  1. Fees Billing, and Payments
    • Subscription Fees. You will pay all fees specified in this Agreement and on your Order Form. The Subscription Fee will remain fixed during the Initial Term of your Agreement unless (i) you exceed your Maximum Users or other applicable limits, (ii) you upgrade your Services, (iii) you subscribe to additional Services, or (iv) otherwise agree to re-contract. Except as otherwise specified, (z) fees are based on Services purchased and not actual usage and (y) payment obligations are non-cancelable. We may also choose to decrease your fees upon written notice to you, which such notice may be by email.
    • Payment & Bill Date. You will be billed upon execution of this Agreement and in advance of all subsequent Bill Dates. You will keep your contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance of the applicable Services and associated Billing Period.
    • Fee Adjustments & Maximum Users. Your Order Form indicates the maximum number of users who are permitted to use the Service (“Maximum Users”). If you exceed your Maximum Users during your Term, we reserve the right to increase your Subscription Fee up to the tier price of our then current list price which corresponds to the number of Maximum Users and your invoice will increase by the corresponding amount.
    • If you choose to upgrade your Services and/or increase the number of users authorized to access and use a Service during your Term, any incremental Subscription Fees associated with such upgrade will be charged on a pro rata basis based on the number of days remaining in the Billing Period. The subsequent Billing Periods will reflect the updated Subscription Fee.
    • If you desire to downgrade your Services or reduce the number of users, you must provide Applied Concepts with thirty (30) days advance written notice prior to the end of your then current Billing Period. Downgrading your Services may cause loss of content, features, or capacity of the Services (including the Platform), and Applied Concepts does not accept any liability for such loss.
    • Fee Adjustments at Renewal. Upon renewal of the Initial Term and each subsequent Renewal Term (if any), we may increase your fees up to our then-current list price. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next Renewal Term. If you do not agree to this increase, either party can choose to terminate your subscription by giving the cancellation notice required by this Agreement.
    • Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
    • Payment against invoice. If you are paying by invoice, we will invoice you upon the Effective Date and each subsequent Billing Period, and other times during the Term when fees are payable. All amounts invoiced are due and payable within ten (10) days from the date of the invoice, unless otherwise specified or agreed in writing.
    • Past Due Payments. Undisputed unpaid amounts (and disputed amounts ultimately determined to be payable to us) are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Law, whichever is lower. You will pay all Fees in US Dollars. All amounts payable to us under this Agreement will be paid by you in full without setoff or withholding for any reason or other than a deduction or withholding of tax as may be required by applicable Law.
    • Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You will be responsible for all Taxes associated with its purchase of access to and use of the Services, other than U.S. taxes based on our income.
    • Acknowledgement. You acknowledge and agree that your entrance into this Agreement is not contingent on the delivery of any future functionality or features of the Services, or dependent on any oral or written public comments made by us regarding any such future functionality or features.
  1. Term & Termination.
    • The initial term of this Agreement is the period beginning on the Effective Date and ending the number of months or years specified in the Order Form (“Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for subsequent 12-month renewal terms (each, a “Renewal Term”; and together with the Initial Term, the “Term”), unless either party gives the other party a written notice of non-renewal at least thirty (30) days before expiration of the Initial Term or the then-current Renewal Term.
    • Termination for Convenience. Either party may elect to terminate the Term for convenience by providing thirty (30) days’ notice to the non-terminating party. If you or we cancel pursuant to the immediately preceding sentence, then you may retain use and access to the Service for the thirty (30) day notice period.
    • Termination for Cause. Either party may terminate the Term: (i) immediately, by providing the other party with written notice, if such other party is in material breach of this Agreement that is not capable of cure (as determined by the non-breaching party acting reasonably) or (if capable of cure) is not cured within fifteen (15) days of receipt of written notice of such breach; or (ii) upon written notice, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    • No Refunds. If this Agreement is terminated for any reason prior to the end of your then current Term, no refunds or credits for Subscription Fee or other fees or payments will be provided to you.
    • Effect of Termination. On termination of the Term for any reason: (i) you will pay all fees for access to the Platform and for other Services provided up to and including the effective date of termination; and (ii) you will within 14 days of the effective date of termination return or certify the permanent destruction of all of our Confidential Information, including any tangible or intangible materials or content delivered to or downloaded by you as part or in connection with the Services. 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.
    • Suspension Rights. We may, directly or indirectly and by any lawful means (including any disabling device), suspend or otherwise deny your or any Representative’s access to or use of all or any part of the Services (including the Platform or any Technology) without incurring any resulting obligation or liability, if: (i) you fail to pay any amount when due under this Agreement, and such failure continues for five (5) days or more after the relevant due date; (ii) we believe, in our sole and absolute discretion, that your or any Representative: (x) have failed to comply with any term of Section 1(f); (y) have accessed or used the Services beyond the scope of the authorization granted or for a purpose not authorized or intended under this Agreement or in any manner that does not comply with any of our instructions or requirements; or (z) are, have been, or are likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on us or negatively impair our goodwill (in each case, in our sole and absolute discretion); (iii) the Term is terminated or expires; or (iv) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so. This paragraph does not limit any of our other rights or remedies whatsoever, including any rights or remedies at law, in equity or under this Agreement.
    • Notices under this Section. Any notice to you from us under this Section 3 may be accomplished via email.
  1. Ownership, Data, and Non-Disclosure.
    • Customer Ownership and License. You own all right, title and interest in and to all Customer Information. You grant Applied Concepts and its suppliers a non-exclusive, fully paid-up license to use, reproduce, store, modify and publicly display Customer Information, to the extent necessary for Applied Concepts and its suppliers to perform their obligations under this Agreement.
    • You acknowledge and agree that Applied Concepts may: (i) anonymize and aggregate data from Customer Information and other data derived from you, your affiliates, and your users’ use of the Services with data of other customers’ (collectively “Results”); and (ii) use and disclose the Results for any purpose provided that the Results do not individually identify you, your users, or Customer Information.
    • Your Obligations with Respect to Customer Information.
      • We will make no effort (and are in no way obligated) to validate Customer Information for completeness, correctness or usability. You will be solely and completely responsible for the accuracy, quality and legality of any and all Customer Information, the means by which you acquired Customer Information, and the use of the same by you and your Representatives.
      • You will ensure (and represent, warrant and covenant) that Customer Information as well as your activities in connection with, use of or access to the Services do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights.
    • The Platform does not replace the need for you to maintain regular data backups or redundant data archives, including with respect to Customer Information. WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY DATA (INCLUDING ANY CUSTOMER INFORMATION) INPUT INTO, MAINTAINED BY OR OTHERWISE AVAILABLE ON OR VIA THE PLATFORM.
    • Applied Concepts Ownership. Applied Concepts and/or its licensors are the sole owners of all right, title and interest in and to: (i) all material, content, and data associated with the Services, including the Platform and the Technology, and all improvements, enhancements or modifications to any of the foregoing; (ii) any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with any professional Services or support Services; (iii) the “Applied Concepts” name, brand, marks and other similar intellectual property; (iv) all Results; and (v) all intellectual property rights related to any of the foregoing. If Customer provides any feedback, comments, suggestions, ideas, requests or recommendations  for modifications or improvements to Applied Concepts (“Feedback”), Customer hereby assigns and agrees to assign all right, title and interest in any such Feedback to Applied Concepts to be used for any purpose.  Any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by us (whether alone or together with Customer or any other third party or parties) arising out of or relating to such Feedback are and will remain our sole and exclusive property. All rights not expressly granted to Customer hereunder are reserved by Applied Concepts and its licensors. During and after the Term, you will cooperate with us to do any and all things which we determine reasonably necessary or desirable to establish, maintain, protect and enforce our exclusive ownership of the property identified in this Section.
    • Non-Disclosure. The receiving party will: (i) protect the confidentiality of the Confidential Information of the disclosing party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event using less than reasonable care; (ii) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement; (iii) not disclose Confidential Information of the disclosing party to any third party (except those third party service providers used by us to provide some or all elements of the Services), and (iv) limit access to Confidential Information of the disclosing party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement.
    • Legally Required Disclosures. If the receiving party is required by a valid legal order to disclose any Confidential Information, the receiving party will, before such disclosure (if permitted by Law) notify the disclosing party of such requirement so that the disclosing party may seek a protective order or other remedy, and the receiving party will reasonably assist the disclosing party therewith, at the disclosing party’s sole cost and expense. If the receiving party remains legally compelled to make such disclosure, it will: (i) disclose only that portion of the Confidential Information that, in the written opinion of its outside legal counsel, the receiving party is required to disclose; and (ii) use commercially reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
    • You grant us the right to add your company logo and entity name to our customer list and website. You can opt-out of this use by emailing info@appliedconcepts.com.
  1. Representations & Warranties.
    • Mutual Representations and Warranties. Each party represents and warrants that: (i) it has the right and power to enter into this Agreement; and (ii) an authorized representative has accepted this Agreement.
    • Services Warranty. We will: (a) use commercially reasonable efforts consistent with prevailing industry standards to perform and maintain the Platform in a manner which minimizes errors and interruptions in the Platform; and (b) perform all professional Services (if any) in a professional and workmanlike manner.
    • Disclaimer of Warranties. You acknowledge that the Services (including the Platform) may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by our third-party providers, or because of other causes beyond our reasonable control. We will use commercially reasonable efforts to provide advance notice by e-mail of any scheduled service disruption to the Services and to reinstate the Services. HOWEVER, WE DO NOT WARRANT THAT ANY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY THAT ANY OF THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY PARTIUCLAR RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5(b), ALL OF THE SERVICES (INCLUDING THE PLATFORM, TECHNOLOGY, AND ALL PROFESSIONAL SERVICES) ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME.  ALL THIRD-PARTY SERVICES INCLUDED IN THE SERVICES ARE PROVIDED “AS IS” AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY SERVICE PROVIDER.
  1. Indemnification & Limitation of Liability.
    • Indemnification by Us. We will indemnify, defend and hold you harmless from and against any claim brought by a third party against you alleging that your use of the Services as permitted hereunder infringes or misappropriates a third party’s valid patent, copyright, or trade secret (an “IP Claim”). The foregoing obligation does not apply to the extent the alleged infringement arises out of or relates to: (i) Customer Information or any third-party services or materials included in the Services; (ii) modification of the Services other than by us or on our behalf; (iii) access or use of the Services in combination with any hardware, system, software, network, or other materials or service not provided by us; (iv) your failure to timely implement any modifications, upgrades, replacements, or enhancements made available to you by us or on our behalf; or (v) any act, omission or other matter described in Section 6(b).
    • Indemnification by You. You will indemnify, defend and hold us harmless against any and all claims brought against us by a third party and all associated losses, damages, judgments, liabilities costs, and expenses (including attorneys’ fees), arising from, resulting from or relating to: (i) your access or use of any of the Services, including any access or use in violation of this Agreement; (ii) our use or storage of Customer Information in accordance with this Agreement; or (iii) our compliance with any specifications or directions provided by you or on your behalf of that of your Representatives.
    • Indemnification Procedure. Each party will promptly notify the other party in writing of any action or claim for which such party believes it is entitled to be indemnified pursuant to Section 6(a) or Section 6(b), as the case may be. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly assume control of the defense and will employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will not settle any action or claim without the Indemnitee’s prior written consent (which will not be unreasonably withheld, conditioned or delayed) unless it unconditionally releases the Indemnitee of all liability and does not admit any liability or create any affirmative obligation or require any contribution from the Indemnitee. If the Indemnitor fails or refuses to assume control of the defense of such action or claim, then the Indemnitee will have the right, but no obligation, to defend against such action or claim, including settling such action or claim after giving notice to the Indemnitor, in each case, in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 6(c) will not relieve the Indemnitor of its obligations under this Section 6, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
    • IP Claim Mitigation. If all or any portion of the Services is, or our opinion is likely to be, subject to an IP Claim, or if your use of the Services is enjoined or threatened to be enjoined, then we may, at our option and sole cost and expense: (i) replace or modify the Services so as to make the Services (as replaced or modified) non-infringing, while providing substantially similar features and functionality, and in which case such replacements or modifications will constitute a part of the Services for purposes of this Agreement; (ii) obtain for you a right to continue using the Services, as materially contemplated by this Agreement; or (iii) if neither of the foregoing is commercially practicable, terminate the Term (or your rights to access and use the infringing component of the Services).
    • THIS SECTION 6 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT ALL OR ANY PORTION OF ANY OF THE SERVICES, OR ANY MATEIALS OR CONTENT PROVIDED BY OR MADE AVAILABLE BY US UNDER THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  1. Limitations on Liability; Mutual Waiver of Class Action Participation.
    • Exclusion of Damages. IN NO EVENT WILL WE OR ANY OF OUR LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF ANY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • Limitation on Liability. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF APPLIED CONCEPTS AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • Waiver of Class Action Participation. Neither we nor you may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND WE ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
  1. Force Majeure. Except for a party’s obligations to pay fees, each party will be excused from performance of its obligations for any period and the time of performance will be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority, war, pandemic, epidemic, health crisis, government order or lockdown, civil disturbance, court order, labor dispute or any other cause beyond its reasonable control, including third party service malfunctions, hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment or network outside of our reasonable control.
  1. Notices. Except as otherwise provided in this Agreement, all notices, demands, requests or other communications which may be or are required to be given, served, or sent by a party to the other party pursuant to this Agreement will be in writing and will be hand delivered, sent by widely-recognized national or international delivery courier service, addressed as set forth below. Documents delivered by hand will be deemed to have been received upon delivery; documents sent by email will be deemed to have been received when the answer back is received; documents sent by courier service will be deemed to have been received upon their receipt, or at such time as delivery is refused by the addressee upon presentation. Either party may change the address for notice by notifying the other parties of such change in accordance with this Section.
    • If to you: to the address set forth on the Order Form.
    • If to us: to the address set forth on the Order Form, marked to the Attention of “Legal Notice,” and in all cases, with copy (but which will not constitute notice) to: info@appliedconcepts.com
  1. Governing Law and Dispute Resolution. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Florida without regard to conflict of law principles. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute between the parties arising out of this Agreement will be first submitted to senior management of both parties for a good faith attempt at amicable resolution. Subject only to compliance with the preceding sentence, any dispute arising out of or relating to this Agreement, or its subject matter (including the extent to which any dispute is subject to arbitration pursuant to this Section) will be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Orange County, Florida, by a single arbitrator. The parties will mutually appoint the arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on the arbitrator, then the AAA will appoint an arbitrator. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction. With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law (subject to the requirements of Section 4(f)).
  1. General Terms.
    • Amendments. Except as otherwise provided in this Agreement, we may update, amend or change these Master Terms at any time on written or electronic notice to you. Amendments will take effect immediately on delivery of such notice or such later date as communicated in such notice. Your continued access and use of the Services following delivery of such notice will automatically be deemed your acceptance of all updates, changes and/or amendments.
    • Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements or representations, whether oral or written. This Agreement (including Order Forms) may be executed in counterparts, which together will form one legal instrument.  Any executed copy of this Agreement made by reliable means (e.g., photocopy, scan copy, electronic signature or other electronic copy) is considered an original.
    • Customer may not assign this Agreement or otherwise transfer any rights hereunder whether by operation of law, change of control, or in any other manner, without our prior written consent. Any assignment or transfer in violation of this section will be null and void.
    • Third Parties. We may (and you hereby permit us to) use third party consultants, contractors and other service providers in performance of our obligations hereunder and, for purposes of this Agreement. This Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
    • No Waiver. No delay or omission by us to exercise any right or power under this Agreement will impair any such right or power or be construed as a waiver thereof. A waiver by us in any one instance of any of the covenants, conditions or agreements to be performed by you will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply.
    • Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
    • The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
      • “Bill Date” means the date of your first kick-off meeting following the Effective Date, and each subsequent monthly anniversary. For example, if the Effective Date of this Agreement is the 1st of the month, and your first kick-off meeting is the 5th of the month, your Bill Date will be the 5th of each calendar month during the Term.
      • “Billing Period” means the period starting on your Bill Date and ending one day before the next Bill Date. For example, if your Bill Date is the 5th of each month, your Billing Period will run from the 5th of each month to the 4th of the following month.
      • “Service(s)” means the products, services, materials and information that are provided by us to you pursuant to an Order Form, whether on a trial or paid basis, including, individually and collectively, the applicable training programs available on the Platform, reporting, onboarding and any other professional services that are provided by us to you under this Agreement.
      • “Customer Information” means all data (including, but not limited to, usage data, skill-development data, survey and quiz results, conversion rates, financial figures) and other material and/or information (including, but not limited to, plans, designs, images, templates, sketches, artwork, logos, trade names, trademarks, and website copy) provided by the Customer to Applied Concepts.
      • “Confidential Information” means all confidential information disclosed by a party to the other party, whether orally or in writing, in tangible or intangible form, and whether on, before or after the Effective Date, including all information concerning the disclosing party’s customers and potential customers, past, present or proposed products, marketing plans, business plans, business opportunities, finances, research, development, any non-public information of a third party and disclosed to the disclosing party in confidence, and the terms and conditions of this Agreement. Our Confidential Information includes non-public information regarding the Services, including any features, functionality or performance of any thereof. Your Confidential Information includes non-public Customer Information, including any such data uploaded by you, your Representatives, or by us or any third party on your or your Representative’s behalf on, to or via the Platform. Confidential Information does not include any information that, as evidenced by the receiving party with written documentation: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party or any third party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without any obligation of confidentiality owed to the disclosing party or any third party; (iii) is lawfully received from a third party on a non-confidential basis and without breach of any obligation owed to the disclosing party or any third party, or (iv) was independently developed by the receiving party without use or reference to Confidential Information and without breach of this Agreement.
      • “Order Form” means our service order form that incorporates these Master Terms and that is executed by you and us with respect to your subscription to a Service, which may detail, among other things, the number of users authorized to use a Service under your subscription and the service level applicable to your subscription.
      • “Subscription Fee” means the amount you pay for the Service(s).