This IN2L CUSTOMER AGREEMENT (“Agreement”) is made as of the Purchaser’s date of Purchase of the iN2L Systems or their electronic acknowledgement of this Agreement, whichever is earlier, by and between It’s Never 2 Late, LLC, with its principal place of business at 5889 S. Greenwood Plaza Blvd. Suite 320, Greenwood Village, CO 80111 (“iN2L”) and the Purchaser (as defined below). iN2L and Purchaser may be referred to in this Agreement collectively as the “parties” or individually as a “party.”

THE PURCHASER SHOULD NOTE THAT THIS AGREEMENT LIMITS THE LIABILITY OF iN2L AND CONTAINS AN AGREEMENT TO ARBITRATE WHICH LIMITS YOUR RIGHT TO PURSUE MONETARY DAMAGES VIA A JURY TRIAL. ADDITIONALLY, PURCHASER MAY BE AGREEING TO BE RESPONSIBLE OR LIABLE FOR THE USER OF THE iN2L SYSTEMS ON WHOSE BEHALF THEY ARE MAKING THE PURCHASE, OR MAY BE OBLIGATING THAT USER UNDER THIS AGREEMENT. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral and written communications between the parties in relation to the subject matter of this Agreement.

iN2L offers systems that provide end users with the ability to access and use software and content from iN2L and other third parties combined with third party hardware (collectively, the “iN2L Systems”). This Agreement sets forth the terms and conditions under which iN2L will provide Purchaser with the iN2L Systems.

 

Terms and Conditions

  1. All capitalized terms used in this Agreement will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States. “Purchaser” means the individual or entity purchasing the iN2L Systems or electronically agreeing to this Agreement, as well as any individual who will ultimately uses the iN2L Systems purchased by the Purchaser (“Users”).
  2. The term of this Agreement begins on your date of purchase and will continue thereafter until terminated in accordance with the terms of this Agreement (the “Term”).
  3. IN2L SYSTEMS. The iN2L System is comprised of: (a) software developed by and/or for iN2L (“iN2L Software”); (b) software developed, provided, or maintained by third-party providers (“Third-Party Software”); (c) information, data, and content developed by and/or for iN2L (“iN2L Content”); (d) information, data, and content developed or provided by third-party providers (“Third-Party Content”), and (e) any Hardware purchased by the Purchaser.
    • Hardware. As part of the iN2L Systems, iN2L provides a tablet computer and may also supply other third party hardware (“Hardware”). iN2L provides a limited one year (from the date of purchase) warranty on its Hardware, and will reasonably replace Hardware found to be defective during the one year warranty period.
    • Functionality. iN2L may provide Purchaser with applicable user manuals, system documentation, or warranty information related to the iN2L Systems (“System Materials”). The iN2L Systems will include the functionality described in the applicable System Materials. iN2L may from time to time update, change, or revise the functionality of the iN2L Systems.
    • License.
      • iN2L Software and iN2L Content. Subject to the terms and conditions of this Agreement, including Purchaser’s payment of all applicable Fees, iN2L hereby grants Purchaser a limited, non-exclusive, non-transferable license to access and use the iN2L Software and iN2L Content solely for Purchaser’s internal, non-commercial use in connection with the iN2L Systems at the Use Sites. iN2L also grants Purchaser a limited, non-exclusive, non-transferable license to use the System Materials solely in connection with Purchaser’s use and access of the iN2L Systems.
      • Third-Party Offerings. Purchaser acknowledges and agrees that certain portions of the iN2L Systems may include Third-Party Software, Third-Party Content, or Hardware (“Third-Party Offerings”). For any Third-Party Offering for which iN2L has the right to sub-license use for the iN2L System, subject to the terms and conditions of this Agreement, iN2L hereby grants Purchaser a limited, non-exclusive, non-transferable license to access and use the Third-Party Offerings solely for Purchaser’s internal, non-commercial use in connection with the iN2L Systems at the Use Sites. Purchaser’s access to and use of any Third Party Offering is also subject to any other agreement separate from this Agreement that Purchaser may enter into (or may have entered into) relating to those Third Party Offerings.
    • Access and Accounts. Purchaser may access the iN2L Systems solely through an account established for Purchaser (“Account”). Purchaser will ensure that all information about each User provided to iN2L in connection with establishing each Account is accurate and complete, and will maintain that information as accurate and complete throughout the Term. Users may be required to agree to separate terms and conditions applicable to the iN2L Systems. Purchaser is and will remain solely responsible for all use of the iN2L Systems by each User and for compliance by each User with the applicable terms. Purchaser will notify iN2L promptly of any such unauthorized access or use of the iN2L Systems. Purchaser is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the iN2L Systems through Purchaser’s Account or by any User, and that any use of Purchaser’s Account will be deemed to have been completed by Purchaser.
    • Purchaser acknowledges that the iN2L Systems, as well as the databases, software, content, hardware, and other technology, systems, and networks used by or on behalf of iN2L and its third-party providers to operate the iN2L Systems, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology”), constitute valuable intellectual property of iN2L and its third-party providers. Purchaser will not, and will not permit any User or other third party to: (a) use, access, or attempt to access the Technology or any portion thereof except as expressly provided in this Agreement; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology; (d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any rights to access or use the Technology or otherwise make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) monitor the availability, performance, or functionality of the Technology; (i) interfere with the operation or hosting of the Technology; or (j) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology.
    • Upgrades and Support. The Fees and iN2L Systems do not include any updates, upgrades, modifications, changes, additions, or improvements to the iN2L Systems (“Upgrade Services”). iN2L shall have the right to provide Upgrade Services at any time in its own discretion. iN2L further has the right to require that Purchaser allow iN2L to update, upgrade, modify, change, add, or improve software components of the iN2L system at any time as iN2L determines is necessary for the continued operation of the iN2L System. The Fees and iN2L Systems do not include any maintenance, support, implementation, or training relating to the iN2L Systems (“Support Services”). Notwithstanding the foregoing, should iN2L elect to provide Purchaser with any Support Services, such Support Services will be provided pursuant to iN2L’s then-current terms and at iN2L’s then-current fees.
  4. FEES AND PAYMENT.
    • Purchaser shall pay iN2L all amounts specified during purchase for the iN2L Systems (“Fees”), which may include one-time fees for hardware as well as monthly fees for access to the iN2L Services. iN2L may change fees provided that iN2L gives Purchaser at least thirty (30) days’ prior notice of any such Fee change.
    • If Purchaser has not made payment within 15 days of the due date of invoice Purchaser shall be in default. Purchaser grants iN2L the right to charge the payment method provided to iN2L for all Fees incurred under this Agreement and iN2L shall be under no obligation to issue an invoice for such Fees. If Purchaser wishes to change its payment method, Purchaser can do so by notifying iN2L. All Fees are non-refundable once paid to iN2L. Purchaser’s failure to pay Fees when due will constitute sufficient cause for iN2L to remotely suspend Purchaser’s access to the iN2L Systems. For the avoidance of doubt, iN2L uses a third party payment processor for payment card information and is not liable for same.
    • Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party: (a) is in material breach of this Agreement and fails to remedy such breach within thirty (30) days following the breaching party’s receipt of notice of such breach; or (b) materially breaches this Agreement in a manner that cannot be remedied. iN2L may also immediately terminate this Agreement upon written notice to the Purchaser if the Purchaser: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. Purchaser may terminate this Agreement by providing iN2L 30 days written notice of same, or by following any termination procedures communicated to the Purchase or a User by iN2L or via the iN2L Systems.
    • Service Discontinuance and Suspension. iN2L may, at any time, discontinue offering any iN2L Systems, or any portion thereof. Upon such date of discontinuation, iN2L may terminate this Agreement as to those iN2L Systems. As of the date of termination, iN2L shall have no further obligation to provide the iN2L Systems or any Service under this Agreement. iN2L may immediately suspend Purchaser’s access to the iN2L Systems if iN2L reasonably believes Purchaser’s or any User’s use of the iN2L Systems may be in violation of this Agreement or applicable law, or that use may present a security risk, or otherwise place iN2L or any third party at risk of harm, loss, or liability.
    • Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) iN2L will immediately cease providing access to all iN2L; (b) all rights and licenses granted to Purchaser under this Agreement will immediately terminate; and (c) Purchaser will immediately cease all use of and access to all iN2L Systems. Upon termination or expiration, iN2L shall have the right to remotely access the iN2L System, or any feature within the iN2L System, and shut down the iN2L System or remove software or content from the iN2L System. Any provision of this Agreement which by its nature should be understood to survive the termination or expiration of this Agreement so shall survive.
  5. OWNERSHIP. iN2L and its third-party providers retain all right, title, and interest in and to the iN2L Systems, all additions, improvements, updates, versions, or other modifications thereto, and all IPR (as defined below) therein or related thereto. Purchaser does not receive any ownership interest in or to any of the foregoing, and except as expressly granted in this Agreement, iN2L grants no rights or licenses to Purchaser (whether by implication, estoppel, or otherwise) in or to the iN2L Systems or any IPR therein or relating thereto. All names and logos associated with the iN2L Systems are trademarks of iN2L (or its third-party providers) and no right or license is granted to Purchaser to use them. Any rights not expressly granted to Purchaser hereunder are reserved by iN2L. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
  6. DATA AND PRIVACY. Purchaser is solely responsible for all of Purchaser’s data input into the iN2L Systems, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof. iN2L will not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Purchaser Data. iN2L may capture, analyze, use and disclose data and information related to Purchaser’s use and performance of the iN2L Systems (“iN2L Data”). All iN2L Data will be owned by iN2L and may be used by iN2L or its permitted service providers, for any lawful business purpose, provided that the data and information is used only in an aggregated form, without directly identifying Purchaser, or any other User, as the source thereof. Data that may identify an individual is subject to the iN2L Privacy Policy, available at https://in2l.com/privacy-policy/.
  7. REPRESENTATIONS AND WARRANTIES. The Purchaser represents, warrants, and covenants that: (a) it has and will continue to have during the Term, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations under this Agreement, including the Purchaser’s power to enter into this Agreement on behalf of the Users; (b) Purchaser’s performance of its obligations under this Agreement does not violate any federal, state, or local laws, rules, and regulations (“Laws”); and (c) it will procure all rights, certificates, licenses, permits, or other approvals required for its performance under this Agreement.
  8. DISCLAIMER. PURCHASER ACKNOWLEDGES THAT THE IN2L SYSTEMS UNDER THIS AGREEMENT ARE PROVIDED BY IN2L AND ITS THIRD-PARTY PROVIDERS STRICTLY “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IN2L MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT OR THE IN2L SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IN2L, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
  9. INDEMNIFICATION. Purchaser will indemnify, defend, and hold harmless iN2L and its officers, directors, employees, and agents (collectively, “iN2L Indemnitees”) from and against any and all claims, demands, actions, proceedings or suits(“Claims”) brought against any iN2L Indemnitee and any related liabilities, losses, damages and expenses, costs (including court costs and reasonable attorneys’ fees) (“Losses”) arising out of, relating to, or resulting from: (a) use of or access to the iN2L Systems by Purchaser or any User, (b) Purchaser’s negligence or willful misconduct, (c) Purchaser’s material breach of any representation, warranty, covenant or obligation in this Agreement or failure to comply with any applicable Laws.
  10. LIMITATION ON LIABILITY. IN NO EVENT WILL iN2L BE LIABLE TO THE PURCHASER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EVEN IF iN2L HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL iN2L’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING CAUSE TO SUCH LIABILITY. PURCHASER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT IN2L WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, IN2L’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
  11. EQUITABLE RELIE Purchaser acknowledges and agrees that due to the unique nature of the iN2L Systems a breach or threatened breach of its obligations under this Agreement would result in irreparable harm to iN2L for which there can be no adequate remedy at law. Accordingly, Purchaser agrees that in the event of such breach or threatened breach of this Agreement, iN2L will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
  12. DISPUTES AND ARBITRATION. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five (5) days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within thirty (30) days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
  13. GOVERNING LAW AND VENUE. The interpretation of the rights and obligations of the parties under this Agreement, including, any disputes arising out of or related to this Agreement, will be governed by the laws of the State of Colorado, U.S.A. without regard to its choice of law principles. Subject to the Disputes section, all disputes or actions rising from or relating to this Agreement shall be submitted exclusively to the jurisdiction of the state and federal courts located in Denver, Colorado, U.S.A., and the parties hereby irrevocably submit to the personal jurisdiction of such courts.
  14. EXPORT CONTROLS. The iN2L Systems, including without limitation software and content, and related technology are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. Purchaser agrees to strictly comply with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Purchaser will indemnify and hold iN2L and all third party providers harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Purchaser of its obligations under this Section.
  15. FORCE MAJEURE. iN2L will not be held responsible for failure or delay in the performance of any obligation under this Agreement, if such failure or delay is due to acts of God, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under this Agreement by iN2L is prevented, restricted or interfered with by reason of a Force Majeure event, iN2L, upon giving prompt notice to the Purchaser, will be excused from such performance to the extent of such Force Majeure event, provided that iN2L will take all reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.
  16. NOTICE. All notices, reports, consents, authorizations and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) email from iN2L to the Purchase; (2) notification by iN2L through the iN2L Systems; (3) Purchaser’s use of a form or submission system (which may be digital) iN2L has created for the purpose. All notices will be effective upon iN2L’s receipt or issuance by iN2L. Either party may change its address for notice by giving notice of the new address to the other party.

ADDITIONAL TERMS. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, such provision will be removed or replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent possible under applicable law, and the remaining provisions will remain in full force and effect. This Agreement and any rights and obligations hereunder may not be transferred or assigned by either party, whether by operation of contract, law or otherwise, without the other party’s prior written consent, and any attempted assignment without such consent shall be null and void. Notwithstanding the foregoing, iN2L may subcontract its obligations under this Agreement without consent, provided that iN2L remains responsible for compliance with its obligations under this Agreement. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” Except as provided for in this Agreement, no term of this Agreement will be construed to confer any third-party beneficiary rights on any non- party. All waivers under this Agreement must be in writing and signed by an authorized representative of the waiving party. Any waiver or failure to exercise any right under this Agreement will not be deemed a waiver of any other provision or of such provision on any other occasion.  Neither party is an agent of the other nor is neither party authorized to make any representation, contract, or commitment on behalf of the other party. In the event of any litigation or other proceeding between the parties relating to this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and other reasonable costs incurred in connection therewith and in pursuing collect