General Terms and Conditions for the Purchase and Use of H2L

Applicability.

These terms and conditions (these "Terms") are the only terms which govern the purchase and use of the Here to Learn platform "H2L") and the accompanying services provided ("Services") by Deep End Talent Strategies, LLC ("Consultant") to your business or organization ("Client"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the purchase of the H2L or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

Notwithstanding anything to the contrary contained in this Agreement, Consultant may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees charged to Client.

Performance of Services. Consultant shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.

Client's Acts or Omissions. If Consultant's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Consultant shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

Price.

Client shall initially purchase H2L from Consultant at the price (the "Price") set forth by Consultant for Client's use. Access to H2L will not commence until the subscription price is paid. Prices are a combination of fixed costs including set up charges and recurring per user subscription costs. Cruise Director subscriptions paid for a period of 12 months or less will not see a change in the per user fee if the number of users decreasing by any amount or increases by 25% or less. An increase in users above 25% may result in an additional per user fee for the remainder of the subscription period.

All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Client. Client shall be responsible for all such charges, costs and taxes; provided, that, Client shall not be responsible for any taxes imposed on, or with respect to, Consultant's income, revenues, gross receipts, personal or real property, or other assets.

Payment Terms.

Client shall pay all invoiced amounts due to Consultant annually or within 30 days from the date of Consultant's invoice. Client shall make all payments hereunder by wire transfer, ACH, or check and in US dollars.

Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Consultant for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Consultant does not waive by the exercise of any rights hereunder), Consultant shall be entitled to suspend performance of any Services or use of any Third Party Product (as hereinafter defined) if Client fails to pay any amounts when due hereunder and such failure continues for 15 days following written notice thereof.

Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Consultant, whether relating to Consultant's breach, bankruptcy or otherwise.

When Client chooses to leave the Here to Learn (H2L) platform or any other product provided by Consultant, Client shall be charged an hourly or project rate for downloading or converting courses for ongoing use by Client. Some content may not be compatible with other platforms.

Limited Warranty.

Consultant warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN Section 6(a), CONSULTANT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. 

Products and software manufactured or created by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or downloaded together with, the Services. Third Party Products are not covered by the warranty in Section 6(a). For the avoidance of doubt, CONSULTANT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. FURTHER, CLIENT ACKNOWLEDGES AND RECOGNIZES THAT SOME THIRD PARTY CONTENT OR FILES TYPES PROVIDED BY CONSULTANT MAY NOT BE ACCESSIBLE WITHIN PLATFORMS USED BY CLIENT. CONSULTANT SHALL NOT BE RESPONSIBLE FOR ANY SUCH LACK OF ACCESSIBLITY ON BEHALF OF CLIENT.

Consultant shall not be liable for a breach of the limited warranty set forth in Section 6(a) unless: (i) Client gives written notice of the defective Services, as the case may be, reasonably described, to Consultant within 15 days of the time when Client discovers or ought to have discovered the defect; (ii) if applicable, Consultant is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 6(a) to remedy the breach; and (iii) Consultant reasonably verifies Client's claim that the Services are defective.

Consultant shall not be liable for a breach of the limited warranty set forth in Section 6(a) if: (i) Client makes any further use of such Services or Third Party Product after giving such notice; (ii) the defect arises because Client failed to follow Consultant's oral or written instructions as to the use, performance, downloading or process for the Services or Third Party Product; or (iii) Client alters or repairs such Third Party Product without the prior written consent of Consultant.

Subject to Section 6(e) above, with respect to any Services subject to a claim under the limited warranty set forth in Section 6(a), Consultant shall, in its sole discretion: (i) rectify or re-perform the applicable Services, or (ii) credit or refund the price of such Services at the pro rata contract rate.

THE REMEDIES SET FORTH IN Section 6(e) AND Section 6(f) SHALL BE THE CLIENT'S SOLE AND EXCLUSIVE REMEDY AND CONSULTANT'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN Section 6(a).

This Agreement does not and shall not affect either party’s rights with respect to any software licensed to Client outside this Agreement (“Licensed Software”), whether it is incorporated into any deliverables from Consultant to Client or otherwise used by either party. Client shall not resell, rent, license or sublicense any contract provided by Licensed Software, Third Party Product, or Consultant at any time.

Limitation of Liability.

IN NO EVENT SHALL CONSULTANT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL CONSULTANT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO CONSULTANT FOR THE GOODS OR SERVICES SOLD HEREUNDER IN THE IMMEDIATELY PRECEDING 12 MONTHS.

The limitation of liability set forth in Section 7(b) shall not apply to (i) liability resulting from Consultant's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Consultant’s acts or omissions.

Compliance with Law. Client shall comply with all applicable laws, regulations, and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

Termination. In addition to any remedies that may be provided under these Terms, Consultant may terminate this Agreement with immediate effect upon written notice to Client, if Client: (i) fails to pay any amount when due under this Agreement and such failure continues for 15 days after Client's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

Waiver. No waiver by Consultant of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Consultant. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Intellectual Property Rights; Content and Use.

Consultant is and will be the sole and exclusive owner of all intellectual property, copyrights, trademarks, and trade secrets used by Consultant in the performance of Services for the Client. Absent an express writing signed by both Parties, Client shall have no right to, ownership of, or title or interest in, any materials used by Consultant for performance of the Services, including without limitation Third Party Product, processes, handbooks, slides, presentations, software, or written materials, and any such materials shall not be shared beyond the agreed upon audience and location of the Client, as set forth in this Agreement, or any amendment thereto. Users of Client shall not share login credentials for any Consultant product or Third Party Product.

To full the extent applicable in light of the nature of the work, all of the deliverables and components and derivatives thereof shall constitute “works made for hire” by Consultant for Client as contemplated by U.S. law or similar provision of other applicable law, whether foreign or domestic. Client shall own any deliverable from Consultant that is custom-made or requested by Client.

Consultant shall have in its sole discretion the ability to remove content or postings from any deliverable or Third Party Product that it finds offensive, inappropriate, or concerning for use by Clients or any other individual.

Confidential Information. All non-public, confidential or proprietary information of Consultant, including but not limited to, samples, designs, documents, data, business operations, handouts, learning objectives, videos, work guides, and other instructional design elements, disclosed by Consultant to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Consultant in writing. Upon Consultant's request, Client shall promptly return all documents and other materials received from Consultant. Consultant shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.

Force Majeure.  No party shall be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, diseases, labor disturbances, riots, or wars provided that it gives prompt notice to the other of its invocation of this provision and make diligent efforts to resume its performance despite such force majeure.

Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Consultant. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.

Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Indiana.

Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Indiana in each case located in the City of Indianapolis and County of Marion, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses provided by the parties or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.

Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.