Last Updated: April 2023
These Terms and Conditions, as may be modified from time to time, are hereby incorporated into that certain Master Service Agreement (the “MSA Agreement”) made and entered into by and between Blue Sky eLearn, LLC, a Delaware Limited Liability Company with its principal offices located at 5405 Morehouse Drive, Suite 340, San Diego, CA 92121 (“BSE”), and the customer (“Customer”), as the same may be amended or modified as agreed between BSE and the Customer from time to time. The term “MSA Agreement” or “Master Service Agreement” includes the Master Service Agreement, any related Statements of Work (each an “SOW”), any modifications or addenda to either the MSA Agreement or a SOW, as well as these Terms and Conditions The “Effective Date” of the MSA Agreement is the date on which the MSA Agreement was executed by both BSE and the Customer (the “Effective Date”).
In consideration of the herein promises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BSE and Customer (each a “Party” and collectively, the “Parties”) hereby agree as follows:
“Application” shall mean the computer programs used to provide the Services, including, but not limited to BSE’s learning management system referred to as Path LMS and the term “Application” further includes, without limitation, all components, elements, features, interfaces, libraries, plug-ins, tools, diagnostic tools, versions and all updates, enhancements, releases, patches, modifications, error corrections, upgrades and derivative works made by BSE or on BSE’s behalf.
“BSE Materials” means Application and other technology, software, products, materials, tools, methodologies, ideas, concepts, know-how, techniques, trademarks or other proprietary materials or information which are owned or licensed by BSE or which are developed by or on behalf of BSE incident to the Services, including, but not limited to, the deliverables, results, manner of delivery or content of the Services.
“BSE Technology” means, collectively, (i) the BSE Materials; and (ii) any other technology, software, products, materials, tools, methodologies, ideas, concepts, know-how, techniques, trademarks or other proprietary materials or information incorporated into or used in connection with the Application, Services, or Events.
“Customer Materials” shall mean the educational content made available to the Customer through the Path LMS platform as part of the Industry Content licensed to the Customer pursuant to the Contract, including but not limited to courses, videos, audio recordings, quizzes, assessments, and other related materials.
“Deliverables” means all items or materials provided on behalf of the Customer (or that BSE is obligated to provide) under the Contract.
“Event” means the live event relating to the Industry Content contained in the Contract, such as a webinar or remote recording, hosted and streamed by BSE or the Member Association for Customer through the Application as part of the Services.
“Industry Content” refers to educational materials that are specifically tailored to a particular field or industry and made available to Customer through the Application. This type of content is designed to provide Learners with the knowledge and skills necessary to succeed in their respective industries.
“Intellectual Property Rights” means all United States and worldwide trademarks, service marks, trade dress, trade names, logos, copyrights, rights of authorship, inventions, patents, rights of inventorship, moral rights, rights of publicity and privacy, trade secrets, rights under unfair competition and unfair trade practices laws, and all other intellectual and industrial property rights related thereto.
“Learners” refers to individuals who are taking courses or accessing educational content through the Application including employees or members of the Member Association who are accessing industry content through a subscription or license.
“Member Association” refers to the professional or trade association to which the Customer is a member, and which offers access and licenses to industry-specific educational content through the Application.
“Overage Charge” refers to an additional fee or cost that the Customer must pay when they exceed the allocated or agreed-upon amount for Services.
“Path LMS” is a learning management system (LMS) developed by Blue Sky eLearn and is a software application that is used to deliver educational content, typically online or through a virtual platform. Path LMS is designed to provide a range of features for delivering and managing online learning content, including course authoring, learner tracking, and reporting.
“Services” means the to be performed by BSE on behalf of Customer, pursuant to the Contract.
II. Ownership of Rights
- Customer Ownership. Customer acknowledges and agrees that the Member Association licensing Path LMS is the sole and exclusive owner of all right, title, and interest, including copyrights, trademarks, trade secrets, and any other intellectual property rights, in and to all the Industry Content listed in the Contract, except for any Customer Materials that the Customer uploads individually to Path LMS. In such cases, the Customer retains ownership of the exclusive content. Nothing contained in these Terms shall be construed as an assignment, license, or transfer to the Customer of any right, title, and/or interest in and to any of the Industry Content, it being understood that all right, title, and interest relating hereto are expressly reserved by the Member Association licensing Path LMS.
- BSE Ownership. Customer agrees that BSE shall own and retain all right, title, and interest to the Services, BSE Materials, and all components thereof, including the Application, the source code to the Application and all related programming and code, and to all other BSE Materials and to all Intellectual Property Rights related thereto, but excluding specifically any Customer Materials.
- Usage Restrictions. Customer shall not use any Industry Content other than as expressly permitted hereunder. Without limiting the generality of the foregoing, Customer shall not copy, modify, distribute, display, transmit, sell, or create derivative works based on any Industry Content, or otherwise use the Industry Content for any commercial purpose, without the prior written consent of the Member Association licensing Path LMS and BSE. Customer may only extend the right to access certain Services to Customer’s employees or other designees solely as necessary to use the Services for the purposes as described in the Contract. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access any portion of the Services made available via the Internet, and for paying all third-party access charges to its respective internet or telephone service provider incurred while using the Service.
- Non-Disparagement: Customer agrees that, during the Term of the Contract and thereafter, it will not attack the title or any rights of the Member Association licensing Path LMS in and to any of the Industry Content and/or the validity of the license granted in these Terms. Customer further agrees not to make any disparaging or derogatory statements about the Member Association licensing Path LMS, its products or services, or its personnel, agents, or representatives, whether orally or in writing, in any public forum, including social media platforms, without the prior written consent of the Member Association licensing Path LMS.
III. Allocation of Liabilities
- Mutual Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party and its Affiliates, and their directors, officers, employees, agents, successors and assigns (collectively, the “Other Party Indemnitees”) from and against all liabilities, losses, damages and costs (including reasonable attorneys’ fees) (collectively, “Losses”) they may suﬀer as the result of third party claims, demands, actions, suits or judgments against them resulting from or arising out of: (i) any breach of the indemnifying Party’s representation or warranties under the Contract, (ii) any violations of laws or regulations applicable to the indemnifying Party’s products or services or any product liability or other claims associated with the indemnifying Party’s products or services, and/or (iii) negligence or willful misconduct of the indemnifying Party or its employees. Without limiting the foregoing, Customer shall be solely responsible at its own expense for obtaining all necessary licenses, memberships , or permissions required by BSE to perform the Services hereunder relating to the audio or visual content provided to Company. BSE may, at its discretion and upon reasonable belief, take any reasonable action it deems necessary if Customer’s conduct or Content fails to conform with the Contract or may create liability for BSE or its suppliers.
- Customer COPPA Indemnification. Not withstanding anything to the contrary in the Contract, Customer shall indemnify, hold harmless, and defend BSE and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, penalties, fines, costs, and/or expenses of whatever kind, including without limitation reasonable attorneys’ fees, arising out of or resulting from any breach or non-fulfillment of any representation or warranty with respect to COPPA under the Contract or any other violations of COPPA by Customer or its officers, directors, employees, agents, or affiliates.
- DISCLAIMER. BSE DOES NOT MAKE ANY WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, CONCERNING THE APPLICATION AND/OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULARLY, SPECIFIC OR OTHERWISE, OR OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BSE FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE FREE OF MALWARE. BSE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE APPLICATION OR THE SERVICES.
- LIMITATION OF LIABILITY. BSE SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHETHER DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT OR REVENUE THAT ARISES OUT OF OR IN. CONNECTION WITH THE CONTRACT IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, THE SERVICES PROVIDED OR TO BE PROVIDED BY BSE AND ANY MISUSE OF THE INDUSTRY CONTENT OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS BELONGING TO THE MEMBER ASSOCIATION LICENSING PATH LMS. CUSTOMERS SOLE REMEDY FOR BREACH OF THIS AGREEMENT WOULD BE A REFUND OF CUSTOMER FEES PAID. THIS LIMITATION APPLIES WITHOUT REGARD TO THE FORESEEABILITY OF DAMAGES. ALL LIMITATIONS SET FORTH IN THIS SECTION APPLY TO ALL CAUSES OF ACTION AND CLAIMS BY CUSTOMER. BSE DOES NOT CONTROL, NOR CAN IT CONTROL, THE FLOW OF DATA TO OR FROM INTERNET SERVICE PROVIDERS, TELECOMMUNICATIONS PROVIDERS AND OTHER PORTIONS OF THE INTERNET OR THE CUSTOMER’S OWN INTERNAL SYSTEMS, INCLUDING INTRANETS AND OTHER WIDE AND/OR LOCAL AREA NETWORKS (COLLECTIVELY, “INTERNAL SYSTEMS”) AND ACCESS SYSTEM. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND INTERNAL SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, THE CUSTOMER (COLLECTIVELY, FOR THE PURPOSES OF THIS DISCLAIMER, “THIRD PARTIES”). AT TIMES, ACTIONS OR INACTION CAUSED BY SUCH THIRD PARTIES MAY PRODUCE SITUATIONS IN WHICH A PARTY’S CONNECTIONS TO THE INTERNET, ACCESS SYSTEM, OR INTERNAL SYSTEMS (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED, AND BSE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, BSE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. BSE SHALL NOT BE LIABLE TO THE CUSTOMER, ANY AUTHORIZED USER, OR ANY OTHER THIRD PARTY FOR ANY CLAIMS OR DAMAGES THAT MAY BE SUFFERED BY THE CUSTOMER, ANY AUTHORIZED USER OR ANY SUCH THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES OF ANY AND EVERY NATURE, RESULTING FROM THE LOSS OF DATA, INABILITY TO ACCESS THE INTERNET OR INTERNAL SYSTEMS, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION, CAUSED BY, OR RESULTING FROM, DELAYS, NON-DELIVERY, OR SERVICE INTERRUPTIONS. BSE SHALL NOT BE RESPONSIBLE FOR THE SERVERS NOT BEING ACCESSIBLE ON THE INTERNET OR ON ITS INTERNAL SYSTEMS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF BSE SUCH AS, WITHOUT LIMITATION, THE CUSTOMER’S OR ANY OTHER THIRD PARTIES, INCLUDING AN INTERNET SERVICE PROVIDER’S, EQUIPMENT CAPABILITIES.
IV. Term and Termination
- Term. The term of the Contract (the“Initial Term”) shall be 1 year from the Effective Date unless otherwise stated in the agreement. Upon the expiration of the Initial Term, the Contract shall automatically renew for successive renewal periods equal to the initial term (each a “Renewal Term”) unless Customer provides BSE with a written notice of cancellation at least 60 days prior to expiration of the Initial Term or any Renewal Term. The Initial Term and any Renewal Terms shall be referred to in this Contract as the “Term.”
- Termination. The Contract mayterminate without notice upon the occurrence of any of the following: (i) thefailure by Customer to pay any amount due hereunder by the due date therefor, a failure to cure such breach within thirty (30) days after BSE’s writtennotice, (ii) the cessation of business by BSE, Customer, or the MemberAssociation; or (iii) if Customer makes an assignment of Customer’s business for the benefit of creditors, a petition in bankruptcyed by or against Customer, a receiver, trustee in bankruptcy, or similar oﬃcer is appointed to take charge of all or part of Customer’s property, or Customer is adjudicated bankrupt.
- Effect of Termination. In no event shall any termination relieve Customer of the obligation to pay any Fees payable toBSE for the remainder of the Initial Term. Thereafter, if BSE terminates the Contract as permitted herein, Customer shall forfeit all Service Fee amounts previously paid. In addition, Customer shall be responsible for any out-of-pocket costs BSE incurs in connection of such termination. BSE shall have no further obligation to maintain Customer’s data after termination or cancellation of the Contract.
- Termination Assistance. Upon the expiration or termination of the Contract, BSE will provide Customer with instructional assistance as Customer may reasonably request to transition the affected services to Customer or one or more third-party providers designated by Customer, in an orderly and efficient manner.
- Inactive Status. In the event BSE makes a request to Customer, and does not get a response from Customer within 7 days from BSE’s request, Customer will deemed to be inactive and will be removed from BSE’s working project calendar. Inactive Customers will be placed back on the project calendar at the next available opening when the communication is received by BSE.
- Cumulative Remedies. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
V. Representations, Warranties, and Covenants
- Mutual Warranties. Each Party represents, warrants, and covenants that (i) such Party has the full right, power, and authority to enter into the Contract and to perform its respective obligations under the Contract; (ii) the execution of the Contract by such Party and the performance by such Party of its obligations and duties under the Contract do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, the Contract will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party shall comply with all applicable laws in connection with its performance under the Contract.
- Infringement Warranties. Customer hereby represents and warrants to BSE that Customer either owns or has obtained written permission or other authorization from the Member Association to access all Customer Materials provided to BSE, and is legally entitled to provide such Customer Materials to BSE and to grant to BSE all license rights herein without violating any duties, or obligations to any third party or infringing on any third party’s Intellectual Property Rights. Customer further represents and warrants to BSE that Customer has obtained or will obtain, prior to each Event, all necessary licenses, releases, assignments and transfers of rights in all multimedia presentations and related materials (including, without limitation, handouts, presentation slides and any included video, audio, photographs or other images) from such speakers or other persons that will be recorded, or such other third persons as are necessary for BSE to perform the Services without violating any Intellectual Property Rights of third parties.
- Content Warranties. Customer hereby represents and warrants to BSE that Customer will not publish, post, download, upload, record or otherwise transmit content via the Application that (i) violates any law, statute or ordinance; (ii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (iii) is profane, indecent, obscene, harmful to minors or contains pornographic depictions; (iv) contains any viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files or other computer programming intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another (“Malware”). BSE reserves the right to cease distribution of any Customer Materials or Event at any time in its sole discretion. Customer further warrants to BSE that BSE’s use of the Customer Materials for the Services, including, but not limited to, the duplication, distribution, streaming or publication of such materials, as permitted herein, will not violate any laws applicable to such materials.
- Non-Infringement. BSE hereby represents, warrants, and covenants to Customer that the Application, Services and all materials and methodologies used by BSE in performing hereunder, including, without limitation, the BSE Technology, will not infringe any Intellectual Property rights in any jurisdiction or otherwise contravene any rights of any third person; all Services will be performed in a professional and workmanlike manner, using qualified and appropriately trained personnel, and consistent with industry standards; the Application: will provide the functions and perform in accordance with the Contract and any service descriptions provided by BSE, and the functionality of the Application will not be materially decreased during the Term; BSE shall not violate the terms of any agreement with any other party by performing under the Contract.
VI. Payment Terms
- Customer will pay BSE the Service Fee for Services set forth in the Contract. Unless otherwise agreed to by Customer in writing, and except for any Overage Charges incurred by Customer, any expenses incurred by BSE in performing the Services will be the sole responsibility of BSE.
- Payment. Customer shall pay either the full annual amount of the Service Fee set forth on the Contract or, with the written approval of BSE, may make monthly payments. If BSE approves monthly payments, the Customer hereby authorizes BSE to make an automatic, recurring monthly charge for that month’s Service Fee as set forth on the Contract. If at any time Customer is delinquent in the payment of any invoice or otherwise is in breach of the Contract, BSE may refuse to provide further Services until such time as such delinquent payment is paid in full or such breach is remedied to BSE’s sole satisfaction, and may require Customer to prepay any additional fees. If Customer stops or voids any payment to BSE, claims a credit for credit card payments for Services already rendered, or in any way impedes BSE’s ability to collect the Service Fee for Services already rendered, BSE shall be entitled to interest in the amount of 1.5% per month, plus the cost of collections and related attorneys’ fees until all due amounts are paid in full. Any features or upgrades to the Services will be provided as agreed in writing.
- Taxes. All Fees are exclusive of any taxes and duties such as value added tax, sales-and-use tax, import or other duties. You are responsible for paying all taxes and duties at the appropriate rate and in the manner for the time being provided by applicable law.
VII. Miscellaneous Provisions
- Entire Agreement. The Contract and these Terms, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the Parties hereto with respect to the subject matter hereof. No amendment, modification, or waiver of the Contract shall be binding on either Party unless accepted and signed, physically or electronically, by each Party’s respective officer.
- Dispute Resolution. The Contract is deemed entered into and performed in the State of California and shall be interpreted in accordance with its laws (without reference to principles of conflict of laws). If a dispute arises out of or relates to the Contract or the breach thereof and that cannot be settled through negotiation, the Parties agree first to try to settle the dispute by mediation. The mediator shall be mutually selected and agreed upon by the Parties. If the Parties are unable to resolve their dispute by mediation within 30 days after service of the request for mediation upon all of the Parties to the dispute, the Parties may pursue legal action in a court of competent jurisdiction in the state of California.
- Confidentiality. BSE will treat as confidential all documents and other information in whatever form, received, obtained or generated in connection with BSE providing to the Customer the Services encompassed by the Contract, whether any such documents are or any such information is labeled or designated as such (“Confidential Information”). BSE is not authorized to disclose beyond the Customer and the Member Association any such Confidential Information, or to use any such Confidential Information, in any form, for any purpose except with the Customer’s prior authorization. Information that is or becomes available in the public domain through no fault of BSE or any of BSE’s employees, or is not acquired by BSE or BSE’s employees from the Customer or from sources known by BSE or BSE’s employees to be in breach of a confidentiality agreement with the Customer, will not be deemed Confidential Information that is subject to the provisions of this paragraph. This provision will survive beyond the conclusion or termination of the Contract.
- Force Majeure. Neither Party is responsible for the consequences to the quality or availability of the Event or the Services for circumstances not completely within its control, such as the effect on sound and video quality caused by ambient noise, faulty Internet connections, utility failures, speaker conduct and other unplanned events, other sound or video quality issues. Neither Party is further responsible for any other delay or failure in performance of the Services caused by Force Majeure events. BSE’s performance under the Contract shall be excused during a Force Majeure event.
- Non-Solicitation of Employees. For a period of one year following the contract termination date, the Customer shall not, directly or indirectly, induce or attempt to induce, any employee of BSE to end or diminish his/her relationship with BSE, or solicit or attempt to solicit any employee of BSE for outside employment, or to any other person for the purpose of assisting any third party to solicit BSE’s employees for outside employment.
- Binding Effect; Assignment. The Contract and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
- Waiver. A failure of either Party to the Contract to enforce at any time any of the provisions of the Contract, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.
- Severability. In the event that any one or more provisions of the Contract shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of the Contract shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and shall be enforced as so modified.