This IN2L MASTER PURCHASE AND LICENSE AGREEMENT (“Agreement”) is made as of the execution date of the Order Summary (“Order Summary Effective Date”) 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 in the applicable Order Summary. iN2L and Purchaser may be referred to in this Agreement collectively as the “parties” or individually as a “party.”

iN2L offers systems that provide Purchaser’s end users with the ability to access and use: (1) software from iN2L and other third parties; (2) information, data, and content from iN2L and other third parties; and (3) third party hardware software, peripherals, and Third Party Offerings (as defined below) (collectively, the “iN2L Systems”), to empower individuals to connect, engage, and enjoy life. Purchaser desires to purchase a subscription to access and use the iN2L Systems for Purchaser’s long-term care communities or other locations where the iN2L Systems will be used and maintained (“Use Sites”).

This Agreement sets forth the terms and conditions under which iN2L will provide Purchaser with a subscription to access and use those iN2L Systems specified in one or more order summaries executed by both parties (each, an “Order Summary”) and will perform those services specified in each Order Summary, including the services made available through the iN2L Systems (the “Services,” as further described herein). All access to and use of the iN2L Systems and the performance of all Services are subject to the terms of this Agreement. If the terms of any Order Summary conflict with the terms of this Agreement, the terms of the Order Summary shall control.

This Agreement includes this page, the attached Terms and Conditions, the Exhibits referenced herein, and each Order Summary entered into by the parties hereunder, all of which are hereby incorporated into and made a part of 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.

Terms and Conditions

1. DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used 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.

2. ORDER SUMMARY. Purchaser may enter into one or multiple Order Summaries under this Agreement. Each Order Summary must be substantially in the form set forth in Exhibit A, or otherwise in a form mutually agreed upon by the parties. Order Summaries under this Agreement will be effective when signed by authorized representatives of both parties. Purchaser will have no rights to access or use any iN2L Systems or Services unless an applicable Order Summary has been executed.

3. TERM. The term of this Agreement will begin on the Order Summary Effective Date for the first Order Summary executed between the parties and will continue thereafter until terminated in accordance with the terms of this Agreement (the “Term”). The term of each Order Summary will be the earlier of the day after the iN2L Systems are implemented at the Use Sites, or 60 days from the effective date stated in the Order Summary (“Order Summary Effective Date”). Unless otherwise stated in an applicable Order Summary, the term of each Order Summary will begin on the effective date stated in the Order Summary (“Order Summary Effective Date”) and will continue thereafter for an initial period of three (3) years (“Initial Order Summary Term”). Unless otherwise stated in an applicable Order Summary, the term of each Order Summary shall automatically renew thereafter for additional 1-year renewal periods, unless either party provides written notice of termination at least sixty (60) days prior to the end of the Initial Order Summary Term or then-current renewal period. These renewal terms (if any) together with the Initial Order Summary Term shall be known as the “Order Summary Term.”

4. 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 as identified in an Order Summary.
     4.1. Acceptance. Purchase must visually inspect all iN2L Systems upon receipt and promptly report possible errors or damage to iN2L. Unless Purchaser provides written notice to iN2L of material defects in any iN2L Systems within five (5) days following the receipt of the iN2L Systems, the iN2L Systems will be deemed accepted by Purchaser when delivered. Notices provided pursuant to this Section must describe the material defects in reasonable detail.
     4.2. Hardware. As part of the iN2L Systems, iN2L may supply Purchaser with third party hardware, peripheral devices, network communication devices, computers, and other equipment related to the iN2L System as identified in an Order Summary (“Hardware”).
4.2.1. Title and Risk of Loss. Purchaser acknowledges that iN2L is acting only as a distributor or reseller of such Hardware and all Hardware is also subject to the applicable terms and conditions of any third-party provider of such Hardware. Title and risk of loss for any Hardware shall transfer to Purchaser FOB shipping point. As between Purchaser and iN2L, Purchaser is responsible for any loss, destruction, damage, or theft of or to the hardware following transfer of the risk and title to Purchaser.
     4.3. Functionality. iN2L shall provide Purchaser with applicable user manuals, system documentation, or warranty information described in the Order Summary 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, provided the functionality of the iN2L Systems is not materially decreased from that described in the applicable System Materials.
     4.4. License.
4.4.1. 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.
4.4.2. 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.
     4.5. Access and Accounts. Purchaser may access the iN2L Systems solely through an account established for Purchaser (“Account”). Purchaser will be permitted to establish user identifications and passwords through which its employees and other end users of Purchaser (“Users”) may access the iN2L Systems under Purchaser’s Account (each, an “Account ID”). Purchaser will ensure that all information about each User provided to iN2L in connection with establishing each Account ID is accurate and complete, and will maintain that information as accurate and complete throughout the Term. Purchaser may allow its Users to access and use the iN2L Systems solely for purposes of exercising the rights granted to Purchaser under this Agreement. Users may be required to agree to separate terms and conditions applicable to the iN2L System. 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 ensure the security and confidentiality of each Account ID and will use commercially reasonable efforts to prevent unauthorized access to or use of the iN2L Systems. Purchaser will notify iN2L promptly of any such unauthorized access or use of the iN2L Systems or if any Account ID is lost, stolen, or otherwise compromised. 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. In no event will iN2L be liable for the foregoing obligations or any failure by Purchaser to fulfill such obligations.
     4.6. Restrictions. 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. Without limiting the other obligations of Purchaser under this Agreement, and as a condition to the rights granted herein, 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.
     4.7. Use Sites. Purchaser shall only use the iN2L Systems at the Use Sites identified in the applicable Order Summary. If Purchaser wishes to change the Use Sites, Purchaser must notify iN2L of the modified Use Sites and obtain iN2L’s prior written approval before initiating such transfer, such approval shall not be unreasonably withheld.

5. SERVICES. If Purchaser enters into an Order Summary that describes any Upgrade Services, Maintenance and Support Services, or other Professional Services (collectively, the “Services”), iN2L will use commercially reasonable efforts to provide those Services to Purchaser during the Term. All such Services are provided subject to the terms and conditions of this Agreement. iN2L has no obligation to provide any of the following Services unless specified in an Order Summary.
      5.1. Upgrade Services. Except as may be set forth in an Order Summary, the Fees do not include any updates, upgrades, modifications, changes, additions, or improvements to the iN2L Systems (“Upgrade Services”), but iN2L shall endeavor to provide typical software updates and patches. 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. If Upgrade Services are required by iN2L and Purchaser has made all applicable payment of Fees, any such Upgrade Services will be made at no further cost to Purchaser. Any updates, upgrades, modifications, changes, additions, or improvements to the iN2L Systems provided by iN2L as part of any Upgrade Services will be treated as part of the “iN2L System” for purposes of this Agreement.
     5.2. Maintenance and Support Services. Except as may be set forth in an Order Summary, the Fees do not include any maintenance, support, implementation, or training relating to the iN2L Systems (“Maintenance and Support Services”). Notwithstanding the foregoing, should iN2L elect to provide Purchaser with any Maintenance and Support Services, such Maintenance and Support Services will be provided pursuant to iN2L’s then-current terms and at iN2L’s then-current fees for such Maintenance and Support Services, as applicable. Purchaser may not obtain maintenance, support, implementation, or training services for the iN2L Systems from any third party, and Purchaser will be solely responsible for performing all other maintenance, support, implementation, or training services not specified in an Order Summary. Maintenance and Support Services shall be performed during the working hours stated in the Order Summary applicable to those Maintenance and Support Services, or, if no working hours are stated, the Maintenance and Support Services will be provided during the hours of 7:00 a.m. to 5:00 p.m., Mountain Standard Time, Monday through Friday, 8:00 a.m. to 5:00 p.m., Mountain Standard Time, Saturday and Sunday, excluding holidays.
     5.3. Professional Services. iN2L will perform any additional professional or consulting services relating to the iN2L Systems (“Professional Services”) if specified in any Order Summary mutually agreed to by both parties under this Agreement. iN2L will perform all Professional Services at the rates for those Professional Services set forth in each applicable Order Summary, or, if no rates are set forth in an applicable Order Summary, at iN2L’s then-current rates for those Professional Services.

6. FEES AND PAYMENT.
     6.1. Fees. Purchaser shall pay iN2L all amounts specified in each Order Summary (“Fees”). iN2L may increase fees on an annual basis effective on each anniversary of the Order Summary Effective Date provided that iN2L: (a) gives Purchaser at least thirty (30) days’ prior written notice of any such Fee change; and (b) such Fee change will be capped 5% of the Fees incurred in the previous year.
     6.2. Payment. All Fees will be invoiced in advance in accordance with the terms of the applicable Order Summary. If no payment terms are set forth in the applicable Order Summary, such Fees will be invoiced on the Order Summary Effective Date and thereafter on an annual basis thirty (30) days prior to the anniversary of the Order Summary Effective Date. All Fees set forth in an invoice issued by iN2L will be due and payable by Purchaser in immediately available U.S. funds within thirty (30) days of the date of invoice. If Purchaser has not made payment within 30 days of the date of invoice (if any), Purchaser shall be in default. If Purchaser has specified in Purchaser’s Account that Fees shall be paid by direct withdrawal or deposit from a credit card, debit card, ACH, wire transfer, mobile services account, or other payment method linked to Purchaser’s Account, 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 in writing. All Fees will be non-refundable once paid to iN2L (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Purchaser’s failure to pay Fees when due will constitute sufficient cause for iN2L to remotely suspend Purchaser’s access to the iN2L Systems or any Services upon notice to Purchaser. iN2L Systems and Equipment will not be released for shipment and any Services or Professional Services will not be schedules or rendered until all Fees due are paid in full.
     6.3. Taxes. The Fees do not include any sales, use, or other taxes, levies, or duties (“Taxes”). Purchaser is responsible for paying all Taxes that may be imposed by way of the performance of either party under this Agreement, excluding only Taxes based on iN2L’s net income.
     6.4. Expenses. Purchaser shall reimburse iN2L for reasonable expenses incurred during the provision of Services. Expenses are billed based on actual costs incurred. Any estimated expenses will, if necessary, be included in each Order Summary. If included in an Order Summary, iN2L shall not exceed the estimated expenses without written approval from Purchaser.
     6.5. Cancellation Fee. If Purchaser: (i) cancels any Services that are to be performed on-site under this Agreement or any Order Summary with less than fourteen (14) days’ advanced notice to iN2L; or (ii) fails to provide the necessary resources needed for iN2L to perform the on-site Services, such as failing to provide Internet, failing to install the wall-mounted or cart-mounted monitors, or failing to install other required Hardware as instructed by iN2L, Purchaser will be assessed an $800 fee for costs incurred by iN2L in connection with such on-site Services, including re-scheduling(“Cancellation Fee”). Purchaser shall pay any Cancellation Fee within ten (10) days of the cancellation date.

7. TERMINATION.

     7.1. Termination. Either party may terminate this Agreement or any Order Summary immediately upon written notice to the other party if the other party: (a) is in material breach of this Agreement or any Order Summary 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. Either party may also immediately terminate this Agreement upon written notice to the other party if the other party: (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. Any termination of this Agreement will terminate all Order Summaries under this Agreement. Any termination of an Order Summary will relate only to that Order Summary (unless otherwise specified in the notice of termination).
     7.2. Service Discontinuance. If iN2L at any time discontinues offering any iN2L Systems, or any portion thereof, or any Services to new customers, iN2L will give Purchaser reasonable advance notice of such discontinuation. Upon such date of discontinuation, iN2L will have the right to terminate this Agreement as to those iN2L Systems or Services upon notice to Purchaser. As of the date of termination, iN2L will credit to Purchaser, on a pro-rated basis, any pre-paid Fees under this Agreement and iN2L shall have no further obligation to provide the iN2L Systems or any Service under this Agreement.
     7.3. Suspension. Without limiting iN2L’s right to terminate 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 the continued access to or use of the iN2L Systems by Purchaser may present a security risk, or otherwise place iN2L, the Technology, any other iN2L customer, or any third party at risk of harm, loss, or liability.
     7.4. Effect of Termination. Upon termination or expiration of this Agreement or any Order Summary for any reason: (a) iN2L will immediately cease providing access to all iN2L Systems and Services under this Agreement or applicable Order Summary; (b) all rights and licenses granted to Purchaser under this Agreement or applicable Order Summary will immediately terminate; (c) Purchaser will immediately cease all use of and access to all iN2L Systems and Services; (d) all Fees and other amounts then owed by Purchaser under this Agreement will become immediately due and payable to iN2L, and Purchaser grants iN2L a security interest in Hardware for any unpaid amounts; (e) Purchaser will immediately either return to iN2L or, at iN2L’s discretion, destroy any software or content on the iN2L Systems, System Materials, and Confidential Information then in Purchaser’s possession or control. 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. At iN2L’s request, an officer of Purchaser will certify in writing that it has fully complied with its obligations under this Section. The following Sections will survive termination or expiration of this Agreement for any reason: 6 (Fees and Payment), 7.4 (Effect of Termination), 8 (Ownership), 11 (Disclaimer), 12 (Indemnification), 13 (Limitation on Liability), 14 (Confidentiality), 15 (Equitable Relief); 16 (Disputes); 17 (Governing Law and Venue), 18 (Export Controls); 19 (Force Majeure), 20 (Notice), and 21 (Additional Terms).

8. OWNERSHIP. iN2L and its third-party providers retain all right, title, and interest in and to the Technology and System Materials, 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, Services or any IPR therein or relating thereto. All names and logos associated with the iN2L Systems and Services 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. Purchaser will not remove or alter any proprietary rights legend on the iN2L Systems. 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.

9. DATA.
     9.1. Purchaser Data. As between Purchaser and iN2L, Purchaser retains ownership of all data, information, and other content provided to iN2L or through the iN2L Systems by or on behalf of Purchaser in connection with Purchaser’s use of the iN2L Systems (“Purchaser Data”). Purchaser is solely responsible for all Purchaser Data, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof, and iN2L assumes no responsibility for any Purchaser Data. Purchaser will obtain and maintain all authorizations, approvals, permissions, consents and other rights necessary for iN2L to use and process all Purchaser Data in the performance of the Services and any other obligations of iN2L under this Agreement. Purchaser will maintain an adequate back-up of all Purchaser Data and 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.
     9.2. iN2L 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.
     9.3. Data Privacy. iN2L will not access, use, or retain any Purchaser Data relating to an identified or identifiable natural person (“Purchaser Personal Data”) other than in accordance with this Agreement or as otherwise instructed by Purchaser, provided that iN2L may use Purchaser Personal Data as required to comply with applicable law to which iN2L is subject.
      9.4. Data Security. iN2L will implement reasonable and appropriate technical and organizational measures in accordance with industry standards to ensure a level of security appropriate to the risk posed to the Purchaser Data. Subject to applicable law, iN2L will notify Purchaser in writing if iN2L becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Purchaser Data (“Security Breach”). Each party is solely responsible for complying with laws applicable to such party with respect to any such Security Breach, including fulfilling any notification obligations related to such breach.

10. REPRESENTATIONS AND WARRANTIES.
     10.1. General. Each party represents, warrants, and covenants to the other party 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; (b) the performance of its obligations under this Agreement does not violate any federal, state, or local laws, rules, and regulations (“Laws”) applicable to such party performance, any rights of any third party, or any agreement by which such party is bound; and (c) it will procure all rights, certificates, licenses, permits, or other approvals required for its performance under this Agreement.
     10.2. iN2L Systems. iN2L represents and warrants to Purchaser that iN2L will use commercially reasonable efforts to maintain and verify that the iN2L Systems operate in accordance with the applicable System Materials and with any other levels of performance specified in an applicable Order Summary. iN2L’s sole obligation and Purchaser’s sole and exclusive remedy in the event of any failure of the iN2L Systems to comply with any such performance levels will be for iN2L to, at its option: (a) remedy the failure; or (b) refund Purchaser the portion of any Fees applicable to the portion of the iN2L Systems subject to the failure. This Section does not entitle Purchaser to any Maintenance and Support Services for the iN2L that are not described in an Order Summary. Any and all warranties under this Section shall be deemed waived by Purchaser and null and void, and iN2L shall have no obligation to Purchaser under any such warranties, if Purchaser: (i) fails to properly maintain and service the iN2L Systems; (ii) uses the iN2L Systems in a manner contrary to the System Materials; (iii) installs software or content that is not approved or authorized by iN2L; or (iv) makes any alteration, addition, improvement, modification or attachment to the iN2L Systems that is not authorized or approved by iN2L.

11. DISCLAIMER. PURCHASER ACKNOWLEDGES THAT THE IN2L SYSTEMS AND SERVICES 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.

12. INDEMNIFICATION.
     12.1. By Purchaser. 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 or Services 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.
     12.2. By iN2L. iN2L will indemnify, defend, and hold harmless Purchaser and its officers, directors, employees, and agents (collectively, “Purchaser Indemnitees”) from and against any Claims brought against any Purchaser Indemnitee by a third party, and any related Losses, that the use by Purchaser of any iN2L System infringes or misappropriates the IRP of such third party. If Purchaser is, or iN2L reasonably believes that Purchaser will become subject to any such third party claim, iN2L may at its option: (a) procure the right for Purchaser to continue using such iN2L System; (b) replace or modify such iN2L System so that it no longer infringes, or (c) terminate this Agreement and provide Purchaser a pro-rated refund of any pre-paid unused Fees applicable to such iN2L System (if any). iN2L’s obligations under this Section will not apply to any Claim arising from: (i) other software, hardware, systems, network, or technology not provided by iN2L as part of any iN2L System; (ii) any modifications or changes to any iN2L System by or on behalf of Purchaser, whether or not in violation of this Agreement; (iii) Purchaser Data; (iv) access to or use of any iN2L System other than as permitted by this Agreement; or (v) use, installation, integration, incorporation, or combination of any iN2L System with or into any other software, hardware, system, network, or technology. THIS SECTION CONSTITUTES IN2L’S SOLE AND EXCLUSIVE LIABILITY, AND PURCHASER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF IPR OR ANY OTHER RIGHTS RELATING TO THE IN2L SYSTEMS.
     12.3. Conditions. Each party’s indemnification obligations under this Agreement are conditioned upon the party seeking indemnification (the “Indemnified Party”) providing the other party with: (a) prompt notice of any such claim for indemnification; (b) sole control over the defense and settlement of such claim, provided that any settlement that will require the Indemnified Party to assume any liability other than the payment of monies will be subject to the Indemnified Party’s prior written consent; and (c) reasonable assistance in such defense or settlement (at the indemnifying or defending party’s expense). A party’s failure to promptly notify the other party of any claim for indemnification will not relieve the indemnifying party of its obligations to indemnify except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced in its ability to defend such claim as a result of such failure.

13. LIMITATION ON LIABILITY. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR ANY LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 4.6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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 SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S BREACH OF SECTION 14, SECTION 4.6, EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND PURCHASER’S PAYMENT OBLIGATIONS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, EXCEED THE FEES PAID OR PAYABLE 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 ACKNOWLEDGE 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.

14. CONFIDENTIALITY.
     14.1. Confidentiality Obligations. By virtue of this Agreement, each party may have access to the Confidential Information of the other party. For purposes of this Agreement, “Confidential Information” means any data or information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, and any other data or information received or otherwise obtained under this Agreement, whether in oral, written, or electronic form, that is either: (a) designated as confidential; (b) of a nature such that a reasonable person would recognize it as confidential; or (c) disclosed under circumstances such that a reasonable person would know to treat it as confidential. For the avoidance of doubt, all iN2L Software, iN2L Content, and System Materials regardless of the form, including all copies and extracts thereof, shall be the Confidential Information of iN2L. Each party shall take all reasonable steps to ensure the confidentiality and security of the other party’s Confidential Information in the same manner as such party protects its own Confidential Information of a similar nature, and in no event with less than reasonable care. Each party will return to the other party, or destroy, all Confidential Information in such party’s possession or control, and permanently erase all electronic copies of all Confidential Information promptly upon the written request of the disclosing party or upon termination of this Agreement.
     14.2. Restrictions on Use and Disclosure. Neither party shall use or disclose any Confidential Information of the other party for any purpose other than exercising its rights and performing its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party to any third party, except to the receiving party’s employees, agents, or contractors (which may include advisors, accountants, and attorneys) who have a need to know such Confidential Information for purposes of this Agreement; provided that any employee, agent, or contractor is bound by a duty of confidentiality at least as protective of the Confidential Information as the terms of this Agreement. Notwithstanding the foregoing, Confidential Information may be disclosed by a receiving party to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that before disclosing such information the receiving party must provide the disclosing party with sufficient advance notice of the agency’s request for the information to enable the disclosing party to exercise any rights it may have to challenge or limit the request for such Confidential Information. 14.3. Exceptions. Notwithstanding the foregoing, the restrictions on use and disclosure of Confidential Information set forth in this Section 14 shall not apply to the extent that such Confidential Information: (i) was rightfully known to the receiving party without restriction on use or disclosure prior to such information’s being disclosed or made available to the receiving party in connection with this Agreement, as shown by the receiving party’s written records; (ii) was or becomes generally known by or available to the public other than by the receiving party’s, or any of its representatives’, noncompliance with this Agreement; (iii) was or is received by the receiving party on a non-confidential basis from a third party that, to the receiving party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the receiving party without reference to, use of, or benefit from any Confidential Information, as shown by the receiving party’s written records.

15. EQUITABLE RELIEF. Purchaser acknowledges and agrees that due to the unique nature of the iN2L Systems, related Technology and Confidential Information, a breach or threatened breach of its obligations under this Agreement would allow Purchaser or third parties to unfairly compete with iN2L, resulting 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.

16. DISPUTES. 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. 17. 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 Section 16 (Disputes), 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.

18. 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.

19. FORCE MAJEURE.
 Neither party will be held responsible for failure or delay in the performance of any obligation under this Agreement, with the exception of the obligation to pay Fees, 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 either party is prevented, restricted or interfered with by reason of a Force Majeure event, the party whose performance is so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such Force Majeure event, provided that the party so affected 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.

20. 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) hand-delivery; (2) reputable overnight mail service; (3) facsimile transmission, provided that an original copy of a transmission will be delivered by some other means permitted under this Agreement; or (4) certified mail, return receipt requested, to the other party at its respective addresses set forth above. All notices will be effective upon receipt (or when delivery is refused), or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.

21. ADDITIONAL TERMS. Except as expressly set forth herein, this Agreement may be modified or amended only by a written agreement signed by both parties. 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. The preprinted terms of a purchase order or any other similar document will not apply to or modify this Agreement.

The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. 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 collection, appeals, and other relief to which that party may be entitled. Purchaser hereby grants iN2L permission to use Purchaser’s name or logo for public press releases and customer stories. iN2L provides the iN2L Systems, including related software and technology, for federal government end use as a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the iN2L Systems are provided to the Purchaser with only those restricted rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with iN2L to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 

Effective 10/17/2019