Effective October 1, 2019
These Terms of Service (“Terms”) constitute a binding contract between you (“you” or “Customer”) and Certmagic, Inc. (“us” or “we” or “Certmagic”) governing the use of and access to the products we offer in connection with a paid or trial subscription (“Certmagic Service”) to you and any authorized individuals engaged by you to use the Certmagic Service on your behalf (each, a “User,” and collectively, “Users”). By using or accessing the Certmagic Service, or authorizing or permitting any User to use or access the Certmagic Service, you accept and agree to be bound by these Terms.
We may update these Terms from time to time. If we do, we will update the Effective Date listed above. Your continued use of the Certmagic Service after these Terms have changed will constitute your agreement to the modified Terms. If you do not agree to the modified Terms, your only recourse is to terminate your use of the Certmagic Service.
“Course Content” means all intellectual property and rights including coursework, images, sounds, and video owned or licensed by Certmagic and provided through the Certmagic Service.
“Customer Content” means all intellectual property and rights including coursework, images, sounds, and video owned or licensed by Customer and provided by the Customer through coursework publishing functionality that may be made available by Certmagic.
“Documentation” means specifications, help documentation, and other written materials provided to Customer in connection with Customer’s use of Certmagic Service.
“Certmagic Service” means the web-based interactive learning service that enables Users to view interactive courses, tutorials, and practice sets and all materials provided therewith.
“Order Form” means an order form referencing these Terms that lists the number and type of Subscriptions Customer has purchased.
“Plan” means a Subscription type made available to Customer (e.g. a-la-carte, unlimited usage, etc.), as further set forth in Exhibit A.
“Subscription” means the right to access Certmagic Service. Subscriptions are available for various types of Users and Plans, as further set forth on the Order Form.
“Subscription Fee” means the fee for a Subscription to Certmagic Service, as listed on the Order Form.
“Users” means users of Certmagic Service for whom Customer has a valid Subscription. Users may be employees, contractors, job applicants or other individuals.
Grant. Subject to Customer’s payment of Subscription Fees, Certmagic hereby grants to Customer a non- transferable, non-exclusive, limited term, royalty-free license, without the right to sublicense, to access and use Certmagic Service in accordance with these Terms.
Administrators; User IDs; Passwords; Service Agreement. Customer must have an assigned administrator to act as a point of contact to Certmagic. Each User must have a unique user ID. User IDs cannot be shared or transferred. Customer is responsible for maintaining the confidentiality of its user IDs and passwords, and Customer agrees that Certmagic has no liability with regard to the use or misuse of such user identifications or passwords by third parties. Users must agree to comply with the terms of service set forth at Certmagic Terms of Service
Restrictions. Except as expressly set forth in Section 2.1, Certmagic reserves all rights and grants Customer no licenses of any kind hereunder, whether by implication, estoppel, or otherwise. The license set forth in Section 2.1 above does not include any rights to and Customer shall not (a) reproduce, modify, translate or create any derivative work of all or any portion of Certmagic Service; (b) sell, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of Certmagic Service; (c) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of Certmagic Service; (d) use Certmagic Service Certmagic, Inc. Confidential Page 2 for third-party training, commercial time-sharing or service bureau use; (e) remove, alter, cover or obfuscate any copyright notices, trademark notices or other proprietary rights notices placed or embedded on or in Certmagic Service; (f) unbundle any components of Certmagic Service, or third party software; or (g) cause or permit any third party to do any of the foregoing.
Ownership. Certmagic is the owner or licensor of, and shall retain all right, title and interest in and to, all intellectual property rights embodied in the Certmagic Service (and any corrections, modifications, updates, or upgrades thereto), whether or not made by Certmagic and whether or not based on feedback from Customer.
Course Content. Certmagic does not guarantee that (i) the Course Content is accurate or error-free or (ii) the licensor of such Course Content has the necessary intellectual property rights to make such content available through the Certmagic Service. Customer’s use of and reliance on Course Content is at Customer’s own risk.
Customer Content. Customer shall retain all intellectual property rights in and to the Customer Content and Customer’s Confidential Information as defined in Section 8.1. If Customer provides any Customer Content to Certmagic, Customer grants Certmagic a worldwide, perpetual, irrevocable, sublicensable license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Customer Content solely to Customer Users as part of the Certmagic Service. Customer shall ensure that (i) it has the necessary rights and approvals to provide any Customer Content, (ii) the Customer Content will comply with all applicable laws and regulations, (iii) the Customer Content shall not contain any personally identifiable information of any patient or other third party, and (iv) the Customer Content does not infringe any copyright or misappropriate any trade secret or intellectual property of a third party.
Warranty Disclaimer. EDUCATIVE SERVICE IS PROVIDED “AS IS” AND “WITH ALL FAULTS.” EDUCATIVE MAKES NO WARRANTY, EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO EDUCATIVE SERVICE, THE CUSTOMER CONTENT, COURSE CONTENT, OR ANY PART THEREOF OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE WARRANTIES ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE, OR TRADE.
Certmagic’s Indemnification.Certmagic shall defend and/or settle, at its own expense, any claim, action or proceeding brought against Customer to the extent based upon a claim that the use of Certmagic Service (excluding the Course Content or any Customer Content) as contemplated hereunder infringes any copyright in the United States or misappropriates any trade secret of a third party (a “claim”) and pay any and all damages and costs as are finally awarded against Customer (including reasonable attorneys’ fees) attributable to such claim, provided that Customer: (i) notifies Certmagic promptly in writing of any such action; (ii) gives Certmagic sole control of the defense and/or settlement of such action; and (iii) gives Certmagic all reasonable information and assistance (at Certmagic’s expense excluding time spent by Customer’s employees or consultants). Should any Licensed Material become, or in the opinion of Certmagic be likely to become, the subject of an infringement claim, Certmagic may, at its reasonable option, (a) procure for Customer the right to use the affected Licensed Material; (b) replace or modify, in whole or in part, the affected Licensed Material to make it non-infringing; or (c) remove the affected Licensed Material, or part thereof, or promptly refund to Customer any prepaid, unused fees and terminate these Terms. THE FOREGOING STATES Certmagic’S ENTIRE LIABILITY AND OBLIGATION FOR INFRINGEMENT CLAIMS.
Customer’s Indemnification.Customer shall defend and/or settle, at its own expense, any claim, action or proceeding brought against Certmagic to the extent based upon a claim that (i) Customer has misappropriated any Course Content or used Course Content in violation of these Terms or (ii) the Customer Content violates any applicable law or regulation or any third party privacy right or infringes any copyright in the United States Certmagic, Inc. Confidential Page 3 or misappropriates any trade secret or intellectual property of a third party (a “claim”) and pay any and all damages and costs as are finally awarded against Certmagic (including reasonable attorneys’ fees) attributable to such claim, provided that Certmagic: (a) notifies Customer promptly in writing of any such action; (b) gives Customer sole control of the defense and/or settlement of such action; and (c) gives Customer all reasonable information and assistance (at Customer’s expense excluding time spent by Certmagic’s employees or consultants). The foregoing states Customer’s entire liability and obligation for infringement claims.
Limitations of Certmagic’sIndemnification. Certmagic assumes no liability hereunder for: (i) any compliance with Customer’s specifications, if Certmagic Service would not itself be infringing or otherwise the subject of the claim but for such compliance; (ii) use of other than a current unaltered release of Certmagic Service provided to Customer, if use of such current unaltered release of Certmagic Service would have avoided the infringement; (iii) the combination, operation or use of Certmagic Service with non-Certmagic programs or data or with Customer Confidential Information or Customer Content, if Certmagic Service would not itself be infringing or otherwise the subject of the claim but for such combination, operation or use; or (iv) use of Certmagic Service not in accordance with the Documentation provided therewith, if Certmagic Service would not itself be infringing or otherwise the subject of the claim but for such use.
Fees and Payment.
Pricing. Pricing for Subscriptions is set forth in the Order Form. Certmagic will invoice Customer for the number of Subscriptions set forth in the Order Form. Prices are subject to change with thirty (30) days advance notice but such increases will not be applied until the renewal of the Subscription.
Payments; Taxes. Unless otherwise specified in an Order Form, all fees are quoted in United States dollars and are non-refundable. Fees shall be due within thirty (30) days from the date of the Order Form. Any good faith undisputed payment not received from Customer by the due date may accrue (except with respect to charges which Customer has disputed in writing and in good faith), at Certmagic’s discretion, late charges at the rate of one and one-half percent (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. Customer is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood by the Receiving Party to be confidential given the nature of the information and the circumstances of disclosure. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other that the Receiving Party reasonably demonstrates: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party‘s cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure shall not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 8, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically Certmagic, Inc. Confidential Page 4 acknowledged by the parties that any other available remedies may be inadequate.
Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTIONS 4.3 (CUSTOMER CONTENT) OR 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. EXCEPT FOR Certmagic’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 8 (CONFIDENTIALITY), IN NO EVENT SHALL THE LIABILITY OF Certmagic OR ITS LICENSORS EXCEED THE LESSER OF $5000 OR THE TOTAL AMOUNT FOR Certmagic SERVICE PAID OR PAYABLE BY CUSTOMER TO Certmagic HEREUNDER.
Term and Termination.
Term. These Terms are effective on the Effective Date of the Order Form and shall remain in effect until the Order Form terminates.
Termination for Cause. A party may terminate these Terms for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) 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.
Effect of Termination. The following provisions shall survive any termination or expiration of these Terms: Sections 3, 4, 5, 6, 7.2, 8, 9, 10.3, 11 and 12. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Certmagic prior to the effective date of termination. In the event that Customer terminates these Terms under Section 10.2, Certmagic shall refund to Customer any prepaid fees for the remainder of the term after termination.
Arbitration. The parties will cooperate in good faith to resolve any disputes regarding these Terms. If the parties are unable to resolve the dispute within thirty (30) days following the date one party sends written notice of the dispute to the other party, and if Customer or Certmagic wishes to pursue the dispute, it shall be resolved through neutral binding arbitration in King County, Washington in accordance with the Commercial Arbitration Rules of The American Arbitration Association. The arbitrator’s award shall be final and binding upon the parties, and judgment may be entered upon it in accordance with applicable law. Expenses of arbitration will be paid according to the findings of the arbitrator.
General Provisions. All notices under these Terms shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing with proper postage; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by confirmed email. These Terms may not be assigned by either party by operation of law or otherwise without the prior written consent of the other party, which consent shall not be unreasonably withheld. Such consent is not required in connection with the assignment of these Terms by Certmagic pursuant to a merger, acquisition or sale of all or substantially all of Certmagic’s assets. The validity, construction and interpretation of these Terms shall be governed by the internal laws of the State of Washington, excluding conflict of law provisions. The parties agree to submit to the exclusive jurisdiction of the state and federal courts of Seattle, Washington. These Terms, together with the Order Form, policies and instructions incorporated by reference, constitute the entire agreement between the parties with respect to the subject matter hereof. These Terms supersede all prior negotiations, agreements, and undertakings between the parties with respect to such matter. If any provision of these Terms is held to be contrary to law, then the remaining provisions of these Terms will remain in full force and effect. Notwithstanding any provision contained in these Terms, except for financial obligations due and owing, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of these Terms are delayed or prevented by causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. A waiver by either party of any breach by the other party shall not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights. These Terms do not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.