Defencify Educational Programs

This Licensing Agreement for Education Programs (the “Agreement”) is entered into by and between Defencify Training LLC (“Defencify”) and the entity identified on the Intellum Service Order (“Client”).  Defencify develops and provides on-demand education and training programs (“Educational Programs”), and Client desires to offer one or more of Defencify’s Educational Programs to its learners.  Client and Defencify hereby agree as to the terms set forth herein. BY EXECUTING AN INTELLUM SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR BY USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE DEFENCIFY’S EDUCATIONAL PROGRAMS.

1. Programs

• (a) License. Defencify hereby grants to Client a limited, non-exclusive license to access and use Defencify’s Educational Programs as agreed upon between Intellum and the Client, and subsequently made available through Intellum’s Learning Management System (the “Licensed Programs”). The Client and their authorized users (each, an “Authorized User”) are permitted to access and use the Licensed Programs via Intellum’s Platform. The specific programs to be accessed under this license will be determined by the agreement between Intellum and the Client and will not be listed in this Agreement. Any changes or updates to the Licensed Programs offered will be communicated to the Client as per the terms agreed upon between Defencify and Intellum.
• (b) Restrictions. Client shall not use the Licensed Programs for any purposes beyond the scope of the license granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Licensed Programs, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Programs; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Licensed Programs, in whole or in part; (iv) remove any proprietary notices from the Licensed Programs; or (v) use the Licensed Programs in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

2. Program Fees.

• Client will pay to Defencify the fees (the “Fees”) as set forth in and in accordance with the terms set forth by a separate agreement between Intellum and the Client. All Fees and other payments of any kind shall be paid by Client to Defencify promptly upon Client’s receipt of each invoice provided by Defencify. If any amounts remain unpaid more than 30 days after the date of the invoice, then in addition to any other rights or remedies available to Defencify under law or this Agreement, Defencify shall have the right to suspend Client and Authorized Users from using the Licensed Programs.

3. Ownership.

• Defencify, or its licensors, shall own all rights, title, and interest in and to the Licensed Programs, together with the related documentation, all copyrights, and all intellectual property rights therein, including, but not limited to, any derivative works thereof. Neither Client nor any Authorized User shall acquire any rights therein and Client will take no action that could be expected to adversely affect or impair Defencify’s ownership of such materials and rights. Client shall notify Defencify promptly of any infringement or suspected infringement of any such intellectual property rights.

4. Term and Termination.

• (a) Coterminous Term. This Agreement shall commence on the date of execution and shall remain in effect concurrently with the term of the corresponding agreement between Intellum and the Client. The expiration or termination of the agreement between Intellum and the Client for any reason shall simultaneously effectuate the termination of this Agreement.
• (b) Termination for Default. Notwithstanding the above, either party may terminate this Agreement in the event of a material breach by the other party. Such termination shall be effective thirty (30) days after written notice if the breach has not been remedied to the non-defaulting party’s reasonable satisfaction during such thirty (30) day period.
• (c) Termination for Insolvency or Cessation of Business. Either party may terminate this Agreement immediately upon written notice if the other party ceases to carry on its business, becomes insolvent, bankrupt, makes an assignment for the benefit of creditors, or becomes subject to any proceeding under state, provincial, or federal law for the relief of debtors.
• (d) Obligations upon Termination. Upon termination or expiration of this Agreement, the Client shall not be released from its obligation to pay any amounts due up to the date of termination. Sections 3, 4, 5, 6, and 7 shall survive the expiration or termination of this Agreement for any reason.

5. Limitation of Liability.

• In no event will Defencify be liable for any incidental, indirect, consequential, or special damage arising out of or related to this Agreement (including loss of profits, use data or any other economic advantage), however it arises, whether by breach of this Agreement or in tort, or otherwise, even if Defencify has been previously advised of the possibility of such damage except that if damage arises from Defencify’s willful or intentional conduct, Defencify will indemnify Client for damage arising from that conduct. Defencify’s total liability hereunder shall not exceed the Fees received by Defencify during the twelve (12) month period immediately preceding the claim giving rise to such liability, and such limitation shall apply except for damage arising from the willful or intentional acts of Defencify and shall survive termination of this Agreement.

6. Limited Warranties.

• (a) Limited Warranties of Defencify. Defencify represents and warrants to Client that each of the Licensed Programs will substantially conform to the description of such Licensed Program provided in Appendix B, which may be updated from time to time by Defencify. Client must report any material defect in any Licensed Program to Defencify in writing and with sufficient detail for Defencify to recreate and observe any such defect in order to receive warranty remedies.
• (b) Exclusive Remedies. The warranties expressed in Section 6(a) are the exclusive warranties of Defencify and are provided in lieu of all other warranties, whether expressed or implied. If Defencify is unable to offer any Licensed Program as warranted, Client’s exclusive and sole remedy, and Defencify’s sole obligation, will be the refund of Fees paid for the deficient Licensed Program.
• (c) Warranty Disclaimer. Except for the express warranties made by Defencify in Section 6(a), Client acknowledges and agrees that Defencify has not made and does not make any further warranties, whether express or implied, relating to the Licensed Programs or any materials provided to Client under this Agreement, including without limitation any warranty that the Licensed Programs will function error-free or that use of the Licensed Programs will be uninterrupted. These and all other implied warranties, including without limitation, warranties of merchantability and fitness for a particular purpose are hereby disclaimed by Defencify.

7. Miscellaneous.

• (a) Independent Contractors. The parties are independent contractors and neither is an agent, joint venture, employer, representative, master or servant of the other for any purpose whatsoever, and that neither has any authority to bind the other or enter into a contract on behalf of the other.
• (b) Notices. All notices and other communications under this Agreement must be in writing and will be deemed given when (i) personally delivered; (ii) upon receipt after being sent by registered U.S. mail, return receipt requested; or (iii) upon receipt after being sent by commercial overnight courier service with tracking capabilities to the address set forth on the signature page below or as such party last provided to the other party by written notice in accordance with this Section 7(b).
• (c) Governing Law; Dispute Resolution. This Agreement shall be deemed to be subject to and shall be construed and interpreted in accordance with the laws of the State of Utah without regard to any conflict of laws principles. Prior to commencing any litigation or other formal dispute resolution, the parties agree to attempt in good faith to resolve such dispute through negotiations between representatives for thirty (30) days. If any such dispute cannot be resolved between the parties, Utah state and federal courts located in Salt Lake County, Utah shall have exclusive jurisdiction and venue of such dispute and the parties hereby consent to the personal jurisdiction of such courts. To the extent permitted by court rules, the parties agree to conduct all depositions, hearings and other proceedings remotely via videoconference or other technological means.
• (d) Severability. If any provision of this Agreement is held to be unenforceable, then such provision(s) shall be excluded from this Agreement; the balance of this Agreement shall be interpreted as if such provision(s) were so excluded; and the balance of this Agreement shall be enforceable in accordance with its terms.
• (e) Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may transfer its rights and obligations hereunder without the consent of the other party to any legal entity that (a) is an affiliate of such party, or (b) is a successor in interest to the business of such party by merger, consolidation or sale of substantially all of the assets or equity interests. Any prohibited assignment shall be null and void. This Agreement shall inure to the benefit of and shall be binding on the successors and permitted assigns of the parties.
• (f) Entire Agreement; Modifications; Waiver. This Agreement constitutes the entire agreement of the parties and supersedes all proposals, oral or written, all negotiations, conversations, discussions, or agreements between the parties relating to the subject matter of this Agreement and all past dealing or industry custom. This Agreement may not be amended, modified, qualified or otherwise changed or altered except in writing executed by an authorized signatory of each party. No term of this Agreement or breach thereof shall be deemed waived unless the waiver is in writing and signed by the party against whom enforcement is sought, and any such waiver shall not be a waiver of any preceding or succeeding breach of the same or any other term.
• (g) Promotion. Defencify acknowledges and agrees not to use the name of Client in any promotional materials, or make public the existence of this contract, without the express written permission of Client.
• (h) Indemnification. To the fullest extent permitted under law, and notwithstanding any limitation of liability in the Agreement, Defencify shall indemnify, defend and hold Client harmless against all third-party claims regarding intellectual property rights in any or all Defencify courses and or course materials.
• (i) Confidentiality. In connection with the negotiation, execution and performance of this Agreement, Defencify acknowledges that it may be provided with confidential business information of Client (“Confidential Information”). Defencify agrees to exercise reasonable commercial efforts to protect and preserve the confidentiality of Confidential Information, including at a minimum those methods and procedures it uses to protect its own confidential information.