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.
4.4.1. 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.
4.4.3. Additional Performance Licenses. The iN2L Systems may allow Purchaser to play, show, display, or otherwise perform certain Third-Party Content such as music and other media. Conducting these activities may be restricted without acquiring appropriate licensing under copyright or other applicable law. Licenses for these performances are not included with the iN2L Systems or as part of this Agreement.
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. If the Services purchased by the Purchaser via an Order Summary include cellular data or connectivity (“Cellular Service”), Purchaser agrees to the Cellular Terms provided as Exhibit B and represents and warrants that it has read, understood, and accepted the same.
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.
7.1. 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.
9.1. 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.
12.1. 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.
14.1. 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.
Exhibit A: Order Summary
Exhibit B: Cellular Terms
This Exhibit B (the “Cellular Terms”) are incorporated by reference into the Agreement if the Purchaser’s purchase of iN2L Services includes the use of cellular services or data (“Cellular Service”).
The iN2L Services and Hardware may not support all uses of the Cellular Service permitted by the cellular carrier. The cellular carrier’s permitted uses of the Cellular Service include:
- Voice calls;
- Web browsing;
- Streaming music;
- Uploading and downloading applications and content to and from the Internet or third party stores;
- Using applications and content without excessively contributing to network congestion; and
- Tethering Hardware to other non-harmful Hardware pursuant to the terms and conditions and allotments of a Data Plan (as defined below).
Purchaser is not permitted to use the Cellular Service in a way that iN2L or any cellular carrier determines, in either parties’ sole discretion:
- Uses a repeater or signal booster other than one iN2L provides;
- Uses the Cellular Service for machine to machine based remote monitoring to provide life-sustaining medical care for any individual, including without limitation, in health care and assisted living environments;
- Uses the Cellular Service for the sale of any type of calling card product or service, including, but not limited to, any ‘grab-and-go’ or rechargeable product with a pin code that allows individuals to purchase and/or refill minutes, internet access features or service;
- Uses, or attempts to use, the Cellular Service for voice communications on a “white label” SIM card, or in any manner that creates, or appears to create a new “brand” of wireless service;
- Uses the Cellular Service for monitoring third parties without their permission, including, but not limited to, prisoner and parolee monitoring;
- Uses Hardware that utilizes a SIM to make voice calls primarily over a Wi-Fi network, including, without limitation, the use of any existing add-on feature that allows Wi-Fi calling capability; Uses Hardware that utilizes a SIM to make voice calls primarily over a Wi-Fi network. Wi-Fi calling capability may be offered on a voice Rate Plan as an ancillary offering only;
- Modifies the Cellular Service in any manner, including, but not limited to, combining to include any third-party products, services, features or functionalities that are not included in the Cellular Service standing alone (“Bundled Service”) without prior written approval from a Vice President from the applicable cellular carrier;
- Resells the Cellular Services or Hardware to any government end user or subscriber, including, but not limited to federal, state, and local governmental entities;
- Resells the Cellular Service or Hardware by promoting any specific feature that may be included with the Rate Plan other than base voice or internet access Service usage allotments that are provided for domestic use with each Rate Plan.
- Compromises network security or capacity, degrades network performance, uses malicious software or “malware”, hinders other customers’ access to the network, or otherwise adversely impacts network service levels or legitimate data flows;
- Uses applications which automatically consume unreasonable amounts of available network capacity;
- Uses applications which are designed for unattended use, automatic data feeds, automated machine-to-machine connections, or applications that are used in a way that degrades network capacity or functionality;
- Misuses the Service, including “spamming” or sending abusive, unsolicited, or other mass automated communications;
- Accesses the accounts of others without authority;
- Results in more than 50% of voice and/or data usage being Off-Net (i.e., connected to another cellular carrier’s network) for any 2 billing cycles within any 12-month period;
- Results in unusually high usage (specifically, more than 50GB (updated periodically) in a month) and the majority of data usage being Smartphone Mobile HotSpot (tethering) usage for any 3 billing cycles within any 6-month period;
- Resells the Cellular Service without authorization, either alone or as part of any other good or service;
- Tampers with, reprograms, alters, or otherwise modifies Hardware to circumvent any of our policies or violate anyone’s intellectual property rights;
- Causes harm or adversely affects iN2l, the carrier, the Cellular Service, other customers, employees, business, or any other person;
- Conflicts with applicable law;
- Is not in accordance with the Agreement;
- Attempts or assists or facilitates anyone else in any of the above activities; or
- In other ways as iN2L or the Carrier may describe from time to time.
Relationship with Carrier
Purchaser has no contractual relationship with, and is not a third-party beneficiary of, any agreement between iN2L and any carrier. Purchaser agrees that the carrier will have no legal, equitable or other liability of any kind to the Purchaser.
Subject to FCC Number portability rules, Purchaser has no property or other rights in any assigned number and such number can be changed at any time.
Purchaser understands Cellular Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of the transmission network. Purchaser agrees that the wireless service carrier or iN2L will not be responsible for such interruptions of the Cellular Service or the inability to use the Cellular Service outside the authorized areas.
Purchaser understands that the wireless service carrier or iN2L cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Cellular Service.
Cellular Service Limitation of Liability
Purchaser understands and agrees that the liability and obligations of iN2L to Purchaser under the Agreement may be strictly controlled and limited by the wireless service carrier’s tariff, if any, and the laws, rules and regulations of the FCC and other United States or foreign governmental authorities which from time to time have jurisdiction. In any event, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, Purchaser’s exclusive remedy and the total liability of the wireless service carrier, iN2L, and/or any supplier of services to iN2L arising in any way in connection with the Cellular Service, for any cause whatsoever, including, but not limited to, any failure or disruption of Service provided, will be limited to payment by iN2L of damages in an amount equal to the amount charged to Purchaser for the Cellular Service provided under the Agreement. In no event will iN2L and/or the wireless service carrier be liable for any cost, delay, failure or disruption of the Cellular Service, lost profits, or incidental, special, punitive or consequential damages. iN2L and/or the wireless service carrier will not be liable for the failure or incompatibility of Hardware in connection with the Cellular Service. Purchaser will use Hardware at its own risk.
Purchaser will indemnify, defend and hold iN2L, the wireless service carrier and the officers, employees and agents of each of them harmless from and against all claims, causes of action, losses, expenses, liability or damages (including reasonable attorneys’ fees and costs), and including without limitation for any personal injury or death, arising in any way directly or indirectly in connection with the Cellular Services. This provision will survive the termination of the Agreement.
Cellular Service may be temporarily suspended or permanently terminated without notice if iN2L’s agreement with the wireless service carrier is terminated for any reason, or the Purchaser violates the Agreement, or the network rules and policies. Purchaser waives any and all claims against the underlying wireless service carrier, including any roaming carrier, for such suspension or termination.
What is a Rate Plan?
“Rate Plans” include Cellular Service allotments, for example, for minutes, messages or data, rates, and other terms. The Cellular Service carrier may introduce access to new technologies, features, or services that Purchaser can add for an additional charge. If any term in Purchaser’s Rate Plan conflicts with this Agreement, the term in the Rate Plan governs.
How will I be charged for data usage?
Data service may be included in the Rate Plan or data add-on or Purchaser may be charged for data usage on a pay per use basis (“Data Plan”). Without a Data Plan, Hardware may not be able to access Cellular Service
Where, how, and when does my Cellular Service work?
These Cellular Terms describe the Cellular Service experience, including information about network management practices.
Experience with the Cellular Service may vary and change without notice depending on a variety of factors. Purchaser agrees that neither iN2L nor the carrier are liable for problems relating to Cellular Service availability or quality.
Cellular Service will operate only after the purchase and activation of a Rate Plan.
Charges. Purchaser agrees to pay all charges billed or accepted or processed through Purchaser Hardware. Purchaser agrees to provide iN2L with accurate and complete billing information and to immediately report all changes in billing information.
Data Usage and Messaging. Rate Plans may include a data plan (“Data Plan”) as part of the Cellular Service. Data usage is rounded up to the next full-kilobyte increment at the end of each data session. 1 gigabyte of data is equivalent to 1,000 megabytes. Data usage includes, among other things, text, web browsing, instant or picture messages, and email whether read or unread, sent or received, solicited or unsolicited. iN2L and carrier do not guarantee that Purchaser will not receive spam or other unsolicited messages, and neither iN2L nor Carrier are liable for such messages. All data purchased with a Rate Plan (both data that comes with a Rate Plan and any additional data purchased as an add-on) will expire immediately upon termination of the Rate Plan for any reason.
Permissible and Prohibited Uses. Data Plans are intended for the approved uses in the Agreement. Examples of prohibited uses can be found in the Agreement and these Cellular Terms.
Data Usage Level. The carrier has set a 4G data usage level (“Usage Level”) for each Rate Plan based on plan period, except for its Pay-Per-Use plans. “4G” means minimum data speeds equal to the lesser of (i) an average of 1.0 mbps over a plan period service term, or (ii) the average Cellular Service network speed in the market over a plan period service term as dictated by the carrier (in its exclusive control). The carrier measures upload and download data usage (“Actual Usage”) to determine if total Actual Usage, as aggregated over the applicable plan period (“Usage Total”), exceeds the plan period’s 4G Usage Level for the Rate Plan selected. Please note that Actual Usage includes requests to upload or download data, whether or not such data is actually uploaded or downloaded, as well as Cellular Service overhead. For example, if a request is made that an image be downloaded to a Hardware, but the Hardware travels outside of the Network coverage area before the download is complete, such request will be included in the Actual Usage even though the image was never downloaded to the Hardware. For Rate Plans that include a finite amount of data, data will be suspended once the plan period data limit is reached and reset upon the commencement of the following plan period’s beginning. If a Rate Plan includes unlimited data, when the Rate Plan’s Usage Level is exceeded, the data speed may be reduced until the end of the applicable plan period. Continued high volume data use after the initial reduction of data speed may result in further reduction of data speed to 128 kbps. Once a new plan period is begun, the Rate Plan Usage Level will be reset and upload and download speeds will be restored. For example, if a customer purchases a Rate Plan that includes unlimited data service, but only includes up to 1 gigabyte of high speed data at 4G speeds during a given plan period, then the first gigabyte of data requested by that Customer in that plan period will be provided at up to 4G speeds (subject to 4G Cellular Service availability and the actual speeds of the carrier). Any data uploaded or downloaded in excess of 1 gigabyte will be provided at reduced speeds. Please be aware that Usage Level is much more likely to exceed a Rate Plan’s plan period Usage Level if streaming video is used, or if significant quantities of music files, movies, or software applications are downloaded, or if other high-bandwidth activities are undertaken.
Protective Measures. To provide a good experience for the majority of our customers and minimize capacity issues and degradation in network performance, the carrier may take measures including temporarily reducing data throughput for a subset of customers who use a disproportionate amount of bandwidth. If use of a Data Plan could interfere with other customers’ service, affect the carrier’s ability to allocate network capacity among customers, or degrade service quality for other customers, the carrier may suspend, terminate, or restrict such data session, or switch the user to a more appropriate Data Plan which may result in an increased cost. The network is managed to facilitate the proper functioning of services that require consistent high speeds, such as video calling, which may, particularly at times and in areas of network congestion, result in reduced speeds for other services. Additionally, other network management practices may be implemented, such as caching less data, using less capacity, sizing video more appropriately for a Hardware to transmit data files more efficiently, and deploying streaming video optimization technology, which may affect the performance and download times of data-heavy activities such as video-streaming on some unlimited plans. Streaming video optimization technology is intended to manage data usage on the Network, reduce the risk of streaming video stalling and buffering, and reduce the amount of high-speed data consumption used for streaming video. Streaming video optimization improves streaming video reliability as well as makes room for other users to enjoy higher browsing speeds. Detectable video may typically stream at DVD quality or Standard Definition.
Wi-Fi Features. Carrier, at its sole discretions, may make available Wi-Fi voice and text messaging services, i.e., the ability to originate and terminate calls and text messages over a Wi-Fi connection (“Wi-Fi Calling”). If offered, Wi-Fi Calling will only be available for those that (i) have a Wi-Fi capable Hardware with carrier supported Wi-Fi calling capability, (ii) have Wi-Fi Calling service provisioned on their account, (iii) have a compatible SIM card, and (iv) are connected to functioning third-party internet service. Not all services available on the carrier’s network are available while using Wi-Fi Calling. For example, emergency alerts may not be available with Wi-Fi Calling. Be aware that calling 9-1-1 via Wi-Fi Calling uses the internet and operates differently than traditional 9-1-1. For example, 9-1-1 may not work during power or internet outages or disruptions, or if internet or Cellular Service is suspended. Location information when using Wi-Fi Calling may be limited or unavailable. When a call to 9-1-1 is made over Wi-Fi, the Carrier may have no or very limited information about the caller’s location. Neither iN2L nor the carrier is responsible or liable for anything related to the use of or inability to use any Wi-Fi Calling, including, without limitation, any failure of emergency calls (whether 9-1-1 calls or otherwise). Wi-Fi Calling may decrement Rate Plan minutes. Most Hardware will not transition between Wi-Fi and the wireless Network. Hardware using wireless connections may be vulnerable to unauthorized attempts to access data and software stored on the Hardware.
Hardware may connect to another provider’s network even within the carrier’s coverage area. Check the Hardware to determine if it is roaming. There may be extra charges (including long distance, tolls, data usage) and higher rates for roaming usage, and quality and availability of the Cellular Service may vary significantly. If made available, roaming charges and rates are subject to change at any time.
Prioritization. To provide the best possible experience for the most possible users of Rate Plans, for the vast majority of Rate Plans carrier may prioritize the data usage of a small percentage of heavy data users, specifically those using more than 30GB of data in a billing cycle, below that of other data users. This threshold number is periodically evaluated and may change over time. Carrier also may prioritize the data of users who choose certain Rate Plans after the data for other Rate Plans, but before users who are prioritized as heavy data users. Users whose data is prioritized lower may notice speeds lower than those users with higher priority in times and locations where there are competing demands for Cellular Service resources. Carrier may prioritize smartphone and mobile internet (tablet) over Smartphone Mobile HotSpot (tethering) traffic on the Network.
Streaming video optimization technology may be used in the Network to help minimize data consumption while also improving the service experience for all users. Additionally, the carrier may implement other network practices to ensure optimized network performance as technologies evolve.
*What are the permitted and prohibited uses for Hardware and the Cellular Services?
The Cellular Service is a shared resource, which is managed for the benefit of all of users. Data Plans are intended for web browsing, messaging, and similar activities. Certain activities and uses of the Cellular Services and Hardware are permitted and others are not.
*What happens if a Hardware is lost or stolen?
Purchaser agrees to notify the carrier if a Hardware is lost or stolen. Once notified, applicable Cellular Service will be suspended. After the Cellular Service is suspended, Purchaser will not be responsible for additional usage charges incurred in excess of Rate Plan charges, and applicable taxes and surcharges. If Purchaser’s Cellular Service is not suspended, Purchaser will remain responsible for all usage and charges incurred and applicable taxes and surcharges. The carrier may prevent a lost or stolen Hardware from registering on any network. California Customers: For charges incurred before carrier is notified, the Purchaser is not liable for charges Purchaser did not authorize, but the fact that the Purchaser’s Hardware or account was used is some evidence of authorization. Purchaser may request that the carrier investigate charges the Purchaser believes were unauthorized. The carrier may ask the Purchaser to provide information to support such request. If carrier determines the charges were unauthorized, the carrier will credit back such charges. If carrier determines the charges were authorized, the carrier will inform the Purchaser within thirty (30) days and the Purchaser will remain responsible for the charges.
*How will Purchaser be billed for use of the Cellular Services?
Pursuant to the Agreement. Purchaser also agrees to pay all charges that were accepted or processed through all Purchaser’s Hardware.
Off-Rate Plan Charges. Purchaser may have to pay extra for calls to some numbers (e.g., conference & chat lines, broadcast, calling card, international, 900 or 976 calls,
etc.). Purchaser agrees to provide carrier with accurate and complete billing and tax related information and to report all changes within 30 days of the change.
For Cellular Services, iN2L may charge a late fee of the greater of 1.5% per month (18% annually), subject to the maximum allowed by law. If Purchaser fails to pay on time and iN2L refers Purchaser’s account to a third party for collection, a collection fee will be assessed by the carrier and will be due at the time of the referral to the third party. The fee will be calculated as a percentage of the amount due to the extent permitted, or not otherwise prohibited, by applicable law. Acceptance of late or partial payments does not waive Purchaser’s responsibility to pay the full amount owed, including late fees. Late payment, non-payment and/or collection fees are intended to be a reasonable advance estimate of actual costs resulting from late payments and non-payments; these costs are not readily ascertainable and are difficult to predict or calculate at the time that these fees are set.
*License. Hardware software is licensed, not sold, to Purchaser by iN2L and/or other licensors for use as intended by the Agreement. Purchaser may only use the software as authorized by its license. Hardware software includes its software, interfaces, documentation, data, and Content & Apps, as each may be updated or replaced by feature enhancements or other updates.
*Consent to be Contacted. iN2L or Carrier may contact the Purchaser without charge, on any wireless telephone number assigned to the Purchaser account for any purpose, including marketing, and in any manner permitted by law. Purchaser expressly consents to be contacted for any purpose, including billing, collection, or other account or service related purpose, at any telephone number or physical or electronic address where purchaser may be reached, including any wireless telephone number.
Emergency Alerts. The carrier participates in the wireless emergency alerts program administered by the federal government within portions of the Cellular Service. This allows federal, state, and local government agencies to send alerts about local emergencies to customers in specifically defined geographic areas. Wireless alert capable Hardware with appropriate notification settings are required for the service. There is no additional charge for these wireless emergency alerts.
911 Access. 911 services are made possible by state and local governments. Purchaser should check to see its Hardware is capable of making calls to 911 in the United States. The Hardware must have battery power and Network connectivity to complete a 911 call. When making 911 calls, be prepared to provide location information. Other third-party entities are involved in connecting a 911 call and the carrier does not determine the public safety agency to which 911 calls are routed. If porting a phone number to or from the carrier, while the port is in process, some services may be unavailable, such as 911 location services. Callers outside of the U.S., may have to dial a different number than 911 to call emergency services.
*DISCLAIMER OF WARRANTIES. Except for the express warranties in the Agreement and any written warranty that may be provided with a Hardware, and to the extent permitted by law, the Cellular Services are provided on an “as is” and “with all faults” basis and without warranties of any kind. Neither iN2L nor carrier make any representations or warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose concerning the Cellular Service or Hardware, nor promise uninterrupted or error-free service or authorize anyone to make any warranties on their behalf. This doesn’t deprive Purchase of any warranty rights it may have against anyone else. The carrier does not guarantee that communications will be private or secure; it is illegal for unauthorized people to intercept communications, but such interceptions can occur.
Services or software provided by third parties (including voice applications), 911 or E911, text to 911, or other calling or messaging functionality, may work differently than services offered by the carrier, or may not work at all. Please review all terms and conditions of such third-party products. When using these products, the carrier is not responsible for the availability or reliability of 911 calls or text to 911 messages, or if inaccurate location information is provided to the 911 Communications Center. Purchaser is responsible for any download, installation, use, transmission failure, interruption, or delay related to Content & Apps, or any third-party content, services, advertisements, or websites accessible by using Hardware or the Cellular Services. Purchaser is responsible for maintaining virus and other internet security protections when accessing third party Content & Apps or other services.