dominKnow Master Software Subscription Agreement

This Master Software Subscription Agreement (this “Agreement”) is made by and between the person or entity set forth on the Order Form (as defined below) (“Company” or “You” or “Your”) and dominKnow, Inc., a Canadian corporation (“dominKnow” or “We” or “Us” or “Our”), and governs Your use of the Services.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR THEIR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND ARE PROHIBITED FROM USING THE SERVICES.

YOU ARE SOLELY RESPONSIBLE FOR REVIEWING THE POSTED VERSION OF THIS AGREEMENT PRIOR TO EACH USE OF THE SERVICES OR RENEWAL OF ANY SUBSCRIPTION OR ORDER FORM TO DETERMINE WHETHER ANY UPDATES HAVE BEEN MADE. YOUR CONTINUED ACCESS TO OR USE OF THE SERVICES AFTER ANY SUCH UPDATE BECOMES EFFECTIVE CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT.

1. DEFINITIONS The following terms have the meanings ascribed to them below:

a.  “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

b.  “Documentation” means the User Guide and any other user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form.

c.  “dominKnow | ONE” means all dominKnow authoring and delivery products Claro, Flow, Capture, and Convey purchased by You.

d.  “dominKnow IP” means the Services, the Documentation, and any and all intellectual property provided to dominKnow or any User in connection with the foregoing. For the avoidance of doubt, dominKnow IP includes Statistical Data (as defined herein) and any information, data, or other content derived from dominKnow’s monitoring of Your access to or use of the Services, but does not include Your Data.

e.  “Learner” means the natural persons who would be receiving the published version of courses You create using the Services.

f.   “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

g.  “Non-dominKnow Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.

h.  “Order Form” means any quote, purchase order, sales order, confirmation, or similar document (including any addenda or supplements) that You, We, or Our Affiliates enter into to order Services under this Agreement. By signing an Order Form, an Affiliate agrees to be bound by this Agreement as if it were an original party. All Order Forms are incorporated into this Agreement by reference.

i.   “Services” means the products and services that are ordered by You under (i) a free trial as set forth in Section 2 below or (ii) an Order Form. The Services are made available by Us online via the customer login link at https://*.clarolive.com, https://*.authr.it, https://*.convey.com, https://*.dominknow.one and/or other web pages designated by Us, including associated offline and mobile components, as described in the Documentation.  The term “Services” exclude Non-dominKnow Applications.

j.   “Service Level Agreement” means a document provided by dominKnow in electronic form, outlining the specific levels of service, performance standards, and support commitments dominKnow agrees to deliver in connection with the Services, which may include details such as uptime guarantees, response times, and procedures for reporting and resolving issues and may be updated from time to time at dominKnow’s reasonable discretion.

k.  “User Guide” means the online user guide for the Services, accessible through the training guide or online knowledge base accessible from within Your dominKnow | ONE login.

l.   “Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business. 

m. “Your Data” means, other than Statistical Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by You or on Your behalf through the Services.

2. FREE TRIAL

a.  We may offer a free or trial versions of the Services (the “Free Services”) from time to time. If You enter into an Order Form for the Free Services, We will make such Free Services available to You free of charge until the earlier of (i) the start date of any paid subscription for a paid version of the Free Services, if applicable, (ii) the end of the free trial period applicable to the Free Services, or (iii) termination of the Free Services by dominKnow at its sole discretion at any time with or without any reason and with or without any notice. Additional terms and conditions may appear on the Order Form for the Free Services and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

b.  ALL FREE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DOMINKNOW AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, AND (iii) WHERE APPLICABLE, USAGE DATA PROVIDED DURING THE TRIAL PERIOD FOR THE FREE SERVICES WILL BE ACCURATE. YOU SHALL BE FULLY LIABLE TO DOMINKNOW AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF OR ACCESS TO THE FREE SERVICES AND ANY BREACH OF THIS AGREEMENT BY YOU.

c.  THE FREE SERVICES MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). WE DISCLAIM ALL OBLIGATION AND LIABILITY UNDER THIS AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTIONS 9 AND 10) FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE FREE SERVICES, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO YOUR DATA. ANY CONFIGURATIONS OR ANY OF YOUR DATA ENTERED INTO THE FREE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE FREE SERVICES BY YOU OR ON YOUR BEHALF, MAY BE PERMANENTLY LOST IF THE FREE SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.

d.  YOU ARE NOT ENTITLED TO RECOVER ANY DAMAGES FROM US FOR ANY REASON ARISING FROM YOUR ACCESS TO OR USE OF THE FREE SERVICES, OR FROM ANY THIRD-PARTY SERVICES USED IN CONNECTION WITH THEM. YOU MAY NOT SEEK OR OBTAIN INJUNCTIVE RELIEF, OR OTHERWISE RESTRAIN OR INTERFERE WITH US, THE FREE SERVICES, OR THEIR DISTRIBUTION, OPERATION, DEVELOPMENT, OR PERFORMANCE. TO THE FULLEST EXTENT PERMITTED BY LAW, DOMINKNOW WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF, OR INABILITY TO USE, THE FREE SERVICES. THIS INCLUDES, WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, AND ANY DAMAGES FOR LOST DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY APPLIED OR WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

3. SERVICES

a.  Provision of Services and Documentation. Subject to and conditioned on Your payment of any applicable fees and compliance with the terms and conditions of this Agreement, We hereby grant You a non-exclusive, non-transferable, right to access and use the Services during the subscription term of the applicable Order Form(s) solely for use by the Users in accordance with the terms and conditions herein. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. Subject to the terms and conditions contained in this Agreement, We hereby grant You a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the applicable subscription term set forth in the Order Form(s) solely in connection with its use of the Services.

b.  User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

c.  Free Reviewer Accounts. A subscription to the Services includes unlimited free Reviewer Accounts (as defined below) required by You exclusively for the purpose of reviewing courses for accuracy and function during the development or prior to publishing.  Reviewer accounts cannot be used for any purposes other than those set forth in this Section 3(c). Without limiting the foregoing, and except as set forth in Section 3(d) to the extent applicable to Your Order Form, You are strictly prohibited from using reviewer accounts for the purpose of delivering courses to end users or Learners.  Using Reviewer accounts for any purposes other than those set forth in this Section 3(c) is a violation of this agreement and will be subject to additional hosting fees and/or termination of Your subscription. As used herein, “Reviewer Accounts” shall mean any User account that accesses a course that is unpublished for the purpose of reviewing such course for accuracy and function or an account that has been created using the “New Reviewer” option or similar feature.

d.  Convey Hosting and Delivery of Published Courses. To the extent explicitly set forth in the Order Form, You are then permitted to publish Your courses for delivery, tracking and reporting to the number of registrations per month specified on the Order Form.  Registrations that exceed Your registrations per month will be billed the overage rate in effect at the time of the purchase. A registration is a single course associated with a learner in a calendar month. A registration occurs when a learner launches a course for the first time.  A Learner may launch the course multiple times in that calendar month, but this will only count as a single registration.

e.  Reservation of Rights. We reserve all rights not expressly granted to You in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to the dominKnow IP.

f.   Suspension. Notwithstanding anything to the contrary in this Agreement, We may temporarily suspend Your or any User’s access to the Services (“Service Suspension”) if: (i) We reasonably determine that (1) there is a threat or attack on the dominKnow systems, (2) Your or any User’s use of the Services disrupts or poses a security risk to our systems or others, (3) You or any User is using the Services for fraudulent or illegal purposes, (4) subject to applicable law, You have ceased normal business operations, made an assignment for the benefit of creditors, or become subject to bankruptcy or similar proceedings, or (5) providing the Services would violate applicable law; (ii) a dominKnow vendor suspends or terminates access to third-party services necessary for the Services; or (iii) as otherwise permitted under Section 6(d). We will use commercially reasonable efforts to give You written notice of any suspension, keep You updated, and restore access as soon as reasonably possible after the cause is resolved. We are not liable for any losses, including data or profit loss, resulting from a Service Suspension.

4. USE OF THE SERVICES

a.  Our Responsibilities. We shall: (i) provide Our basic support for the Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Services available as outlined in the Service Level Agreement, and (iii) provide the Services only in accordance with applicable laws and government regulations.

b.  Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.  We shall not (i) modify Your Data, (ii) disclose Your Data except as compelled by law in accordance with Section 8(c) or as expressly permitted in writing by You, or (iii) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

c.  Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the Documentation and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

d.  Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space and for Services that enable You to host, deliver, register, report and track Your published courses, on the number of registered Learners or views by visitors to those courses. Any such limitations, if they exist, may be made available or communicated to You through the Services or upon request. The Services have the capability to record and report usage information to support monitoring and verification of Your compliance with any such limitations.

e.  dominKnow Stock Assets Library. dominKnow | ONE includes access to a library of stock images, speech bubbles, people, clipart, shapes, audio, video and photos (collectively, “Assets”).  Access to these Assets and permissions to use these Assets are provided to You for use in dominKnow | ONE authored courses only.  Your permission and access to these Assets is limited to the following terms: (i) Your subscription is current and under good payment terms, in accordance with Section 6; and (ii) You use the Stock Assets within dominKnow | ONE created courses only. You are prohibited to use dominKnow | ONE Stock Assets in: (1) Design template applications intended for resale, whether on-line or not, including, without limitation, website templates, flash templates, business card templates, electronic greeting card templates, and brochure design templates; and (2) Other non-dominKnow | ONE products including any authoring, office products, or development tools. Upon termination of Your subscription any Assets that You have used from Our Stock Asset Library can continue to be hosted, stored and delivered within courses created in dominKnow and published as a course from dominKnow | ONE, so long as the course remains unedited or unaltered outside of dominKnow | ONE.  If You alter in anyway (edit, update) the course outside of dominKnow | ONE using any software, tool, authoring tool, system, product or service other than dominKnow | ONE You must remove and destroy any and all dominKnow | ONE Stock Assets from Your dominKnow | ONE published course.

5. NON-DOMINKNOW PROVIDERS

a.  Non-dominKnow Products and Services. From time to time, You may access third-party content or services through dominKnow (for example, via the Media Browser, Template Library, or external websites) (such content and material, “Third-Party Materials” and such provider of Third-Party Materials, “Third-Party Provider”). Any offering of Third-Party Materials is solely between You and the Third-Party Provider. dominKnow does not warrant, support, or take responsibility for the Third-Party Materials, even if they are labeled as “certified” or otherwise endorsed by dominKnow.

b.  Non-dominKnow Applications and Your Data.  If You install or enable Non-dominKnow Applications for use with Services, You agree that such third-party providers will have access to Your Data as needed for such Non-dominKnow Applications to work with the Services. We are not responsible for any disclosure, modification, or deletion of Your Data caused by such third-party Non-dominKnow Application providers. You can limit such access by preventing Users from installing or enabling those third-party Non-dominKnow Applications.

c.  Integration with Non-dominKnow Applications. The Services may contain features designed to interoperate with Non-dominKnow Applications (e.g., templates, designs, widgets, Video Editors/transcoders, SCORM Cloud, Bright Network, Kaltura, youTube, Vimeo, TED etc.). To use such features, You may be required to obtain access to such Non-dominKnow Applications from their providers. If the provider of any such Non-dominKnow Application ceases to make the Non-dominKnow Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

6. FEES AND PAYMENT FOR SERVICES

a.  Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on month, quarterly, or yearly periods, as noted on the Order Form, that begin on the subscription start date and each anniversary thereof; therefore, fees for User subscriptions added in the middle of a period will be prorated for the remaining term in that period and then included with future annual subscription renewal periods. A multiyear subscription for any Services or multiyear renewal is an agreement to purchase the full value of all years of the subscription, even if required payments are annual. The recurring fees to be paid by You are fixed for the initial subscription term set forth within the applicable Order Form. Thereafter, We may increase these fees for future or renewal subscription terms and on an annual basis.

b.  Invoicing and Payment. You must provide Us with valid and current credit card details, a purchase order, or another payment document reasonably acceptable to Us. If You use a purchase order, it must be received at least 30 days before the renewal date and will be considered late if received after that date. By providing credit card information, You authorize Us to charge the card for all Services listed in the Order Form (including any renewal terms) as described in Section 12(b). Charges are made in advance, either annually or on the billing schedule specified in the Order Form. If payment is by another method, We will invoice You in advance per the Order Form. Unless otherwise stated, invoices are due 30 days from the invoice date. You are responsible for keeping billing and contact information complete, accurate, and up to date.

c.  Overdue Charges. If any charges are not received from You by the due date or if using a PO the PO is not received by the renewal date, then at Our discretion, (a) such charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6(b). You shall reimburse Us for all reasonable costs We incur in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

d.  Missing Payments. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.  We will give You at least 7 days prior notice that Your account is overdue before suspending services to You.

e.  Payment Disputes. We shall not exercise Our rights under Sections 6(c) or 6(d) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

f.   Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.

7. PROPRIETARY RIGHTS

a.  Reservation of Rights in Services. Subject to the rights and licenses granted by Us in this Agreement, We and Our licensors reserve and retain Our entire right, title and interest in and to all any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (“Intellectual Property Rights”) in the dominKnow IP; and none of Your or any Users acquire any ownership or Intellectual Property Rights in or to Our Intellectual Property Rights as a result of an Order Form. No rights are granted to You hereunder other than as expressly set forth herein.

b.  Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (x) build a competitive product or service, or (y) copy any features, functions or graphics of the Services.

c.  Your Courses and Content. If You, a third party acting on Your behalf, or a User creates courses or add content using the Services, You authorize Us to host, copy, transmit, display and adapt such courses and content, solely as necessary for Us to provide the Services in accordance with this Agreement.  Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such courses or content, including any intellectual property rights therein.

d.  Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.  You hereby grant Us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Your Data and perform all acts with respect to Your Data as may be necessary for Us to provide the Services, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Your Data incorporated within the Statistical Data.

e.  Feedback. If You, any User, or of Your employees or contractors sends or transmits any communications or materials to Us by mail, email, telephone, or otherwise, suggesting or recommending changes to the dominKnow IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), We are free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to dominKnow on Your behalf, and on behalf of the Users and Your employees, contractors, and/or agents, all right, title, and interest in, and We are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although We are not required to use any Feedback.

f.   Statistical Data. We may process, use, and collect certain data and information from Users in connection with their use of the Services to deliver, analyze, support, and improve the Services. Such data may include information regarding the use and operation of the Services in an aggregated and anonymized manner, including without limitation features utilized, device and application identifiers, system and configuration details, location data, log and event files, diagnostic data, and other aggregated and anonymized statistics (collectively, “Statistical Data”). We may use Statistical Data for service maintenance, security, performance monitoring, technical and customer support, product development and enhancement, benchmarking, and marketing purposes. We retain all intellectual property rights in and to the Statistical Data.

8. CONFIDENTIALITY As used herein, “Confidential Information” means any nonpublic information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) that is designated as confidential or should reasonably be understood as confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and each party’s Confidential Information includes the terms of this Agreement and all Order Forms, as well as business plans, product designs, technology, and processes. Confidential Information does not include information that (a) becomes public through no fault of the Receiving Party, (b) was lawfully known to the Receiving Party before disclosure, (c) is received from a third party without breach of any confidentiality obligation, or (d) is independently developed by the Receiving Party. The Receiving Party shall use at least reasonable care to protect the Disclosing Party’s Confidential Information and may use it only as permitted under this Agreement. Access may be given only to the Receiving Party’s employees, contractors, and agents (including those of its Affiliates) who need to know such information for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective as these. Neither party may disclose the terms of this Agreement or any Order Form to third parties without the other party’s written consent, except to Affiliates, legal counsel, and accountants who are subject to confidentiality obligations. The Receiving Party may disclose Confidential Information when legally required to do so, provided it gives the Disclosing Party prior written notice (if legally permitted) and reasonable assistance, at the Disclosing Party’s expense, to contest or limit the disclosure.

9. WARRANTIES AND DISCLAIMERS

a.  Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the Documentation, (iii) subject to Section 5(c), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12(c) and Section 12(d).

b.  Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so. You warrant that You will be solely responsible for compliance with all laws applicable to use of and access to the Services, and to Your performance of any of Your obligations under this Agreement.

c.  Third Party Products and Services. We do not make, and hereby expressly disclaim, any warranties in connection with non-dominKnow Applications or any other products and services provided by third parties. All non-dominKnow Applications or any other products and services provided by third parties are provided “As-Is” without any warranty or indemnification from Us whatsoever. 

d.  Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ‍ALL PRODUCTS, SERVICES, FILES, CONTENT, COURSES, MATERIAL, AND DATA UPLOADED INTO THE SERVICES, WHETHER OR NOT OWNED BY DOMINKNOW OR BY NON-DOMINKNOW APPLICATIONS, AND PURCHASED AND/OR DOWNLOADED BY YOU OR YOUR USERS ARE BEING PROVIDED “AS-IS” WITHOUT ANY WARANTY OR INDEMNIFICATION FROM US WHATSOEVER AS TO THE QUALITY, ORIGINALITY, AUTHENTICITY, LEGALITY, INTEGRITY, ACCURACY, AND APPROPRIATENESS OF ANY SUCH DOWNLOADED OR PURCHASED PRODUCTS, SERVICES, FILES, CONTENT, COURSES, MATERIAL, AND DATA.

e.  Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-GA Services”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.  Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms.  NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY.  We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.

10. INDEMNIFICATION

a.  Indemnification by Us. We shall indemnify, defend, and hold You harmless from all losses, damages, liabilities, claims, costs, and expenses (including reasonable attorneys’ fees and enforcement costs) (“Losses”) arising from any third-party claim, action, or proceeding (“Third-Party Claim”) alleging that Your authorized use of the Services under this Agreement infringes or misappropriates that third party’s intellectual property rights. This obligation applies only if You: (i) promptly notify Us in writing of the Third-Party Claim; (ii) cooperate with Us in the defense; and (iii) grant Us sole control over the defense and settlement. If a Third-Party Claim is made or appears likely, We may, at Our option: (1) modify or replace the Services (or any component) to make them non-infringing; or (2) obtain the right for You to continue using them. If neither option is reasonably available, We may terminate this Agreement (in whole or in part) upon written notice and refund any prepaid fees for the remaining term of affected subscriptions. This indemnity does not apply to claims arising from: (A) Your Data or materials from non-dominKnow applications; (B) Use of the Services with hardware, software, or materials not provided or authorized by Us; (C) Modifications to the Services not made or approved by Us in writing; or (D) Your failure to implement relevant updates, upgrades, or enhancements provided by Us.

b.  Indemnification by You. You shall indemnify, defend, and hold Us harmless from all losses and claims brought by a third party arising from: (i) Your breach of this Agreement, including any representation, warranty, or obligation; (ii) any act, error, or omission by You or Your Users, including personal injury, death, or property damage resulting from negligence or misconduct; or (iii) any claim that Your Data or Your use of the Services (in violation of this Agreement) infringes a third party’s intellectual property rights or violates any law. Our rights to indemnification apply only if We: (1) promptly provide You with written notice of the claim, (2) allow You to control the defense and settlement (provided You do not settle without Our written consent or unless the settlement fully releases Us), and (3) reasonably cooperate with You at Your expense.

c.  Exclusive Remedy. This Section 10 states Our sole liability to, and Your exclusive remedy against Us, for any type of claim described in this Section 10.

11. LIMITATION OF LIABILITY

a.  Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6.

b.  Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. TERM AND TERMINATION

a.  Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

b.  Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 45 days before the end of the relevant subscription term.

c.  Termination for Cause. A party may terminate this Agreement for cause: (i) upon 60 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.

d.  Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

e.  Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Services subscription, We will make available to You the ability to export Your content as web compliant, SCORM, xAPI compliant content, or dominKnow | ONE Source Format (JSON based). After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

f.   Surviving Provisions. Sections 6, 7, 8, 9(b)-(e), 10(b), 11, 12(d), 12(e), and 13, along with any other terms and conditions that by their nature should reasonably survive termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement.

13. GENERAL PROVISIONS

a.  Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

b.  Governing Law and Jurisdiction – U.S. Customers. If You have a principal office address in the U.S.: (a) this Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, without regard to its conflict of law principles; and (b) any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the state and federal courts of the State of Indiana, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.

c.  Governing Law and Jurisdiction – Canadian Customers. If You have a principal office address in Canada: (a) this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its conflict of law principles; and (b) any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the courts of the Province of Ontario, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.

d.  Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

e.  Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of various jurisdictions. Each party represents that it is not named on any Canadian government denied-party list. You shall not export, re-export, transfer, or provide access to the Services in violation of such laws, including to prohibited countries, persons, or end users. dominKnow may suspend or terminate access to the Services immediately if it reasonably believes Your use of the Services would violate applicable export or sanction laws.

f.   Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us (info at dominknow dot com).

g.  Relationship of the Parties.  The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

h.  No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.

i.   Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

j.   Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

k.  Assignment. Neither party may transfer its rights or obligations under this Agreement without the other party’s written consent, which cannot be unreasonably withheld. Either party may, however, assign this Agreement to an Affiliate or as part of a merger, acquisition, or sale of substantially all its assets, as long as the assignee is not a direct competitor of the other party. If an assignment violates this section, the other party may terminate this Agreement by written notice and receive a refund of any prepaid fees for the remaining subscription term. This Agreement binds and benefits both parties and their permitted successors and assigns.

l.   Entire Agreement. This Agreement, including all exhibits, addenda, and Order Forms, is the complete agreement between the parties and replaces all prior or current agreements, proposals, or communications, whether written or oral, about its subject matter. If there is any conflict between this Agreement and an exhibit, addendum, or Order Form, the terms of that exhibit, addendum, or Order Form will control. Terms or conditions in any purchase order or similar document (other than an Order Form) do not apply and have no effect.

m. Use of Name. We are permitted to use Your name, logo, or trademarks in any of Our publicity, advertising or sales materials, unless We receive from You a written request explicitly denying such permission.