Terms and Conditions: August 2022

Last Updated: August 2022

This Master Services Agreement (the “MSA Agreement”) is 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”). This MSA Agreement is effective on the date that the Customer executes the SOW attached to this MSA Agreement, physically or electronically (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:

I. Definitions

“Active User” is defined as an individual who accesses the Path Platform at least 1 time during the month. An active user may access the site an unlimited amount of times during the month they are active.

“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, as more fully described in the SOWs, 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, but in all cases excludes any Customer Materials.

“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 (other than the Customer Materials) 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. For the avoidance of doubt, BSE Materials specifically excludes the Customer Materials.

“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 (other than the Customer Materials) incorporated into or used in connection with the Application, Services, or Events.

“Correction Change Request” means a request by Customer for changes or corrections to an Event Archive after BSE’s delivery of the Event Archive to Customer.

“Customer Materials” means any content, text, documentation, artwork, logos, video, Data, and other materials that are uploaded, recorded, or otherwise transmitted using the Application or otherwise provided by or on behalf of Customer or any of its authorized users in connection with an Event or for hosting, access, display, streaming, and publication through the Services.

“Data” means any data or information (including personally identifiable information), in any form or format, including compiled, summarized, or derivative versions of such data or information, which are collected by BSE through the Application or otherwise in connection with the Services or an Event.

“Deliverables” means all items or materials provided by or on behalf of BSE (or that BSE is obligated to provide) to Customer under this MSA Agreement, including any Event Archives.

“Editing Change Request” means a request by Customer for changes to an Event archive that involves additional editing, reformatting or color adjustments from the native content received by BSE.

“Event” means the live event, such as a webinar, hosted and streamed by BSE for Customer through the Application as part of the Services.

“Event Archive” means a digital record of an Event, created by BSE based on Customer Materials and the Event, and delivered to Customer for long term retention purposes.

“Force Majeure” means acts or events beyond the reasonable control of a Party, and not caused by the fault or negligence of such Party or those working on such Party’s behalf (e.g. subcontractors), which may include acts of God, war, vandalism, sabotage, accidents, fires, floods, strikes, labor disputes, acts of any unit of government or governmental agency or any similar cause.

“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.

“Services” means the services to be performed by BSE on behalf of Customer, pursuant to this MSA Agreement, as more fully set forth in the applicable SOW.

“Service Fees” means the fees payable by Customer to BSE for the Services, as more fully set forth in the applicable SOW.

“SOW” means a written statement of work entered into by the Parties, which in each case shall set forth, as applicable, the Services to be performed by BSE and corresponding Service Fees, and if applicable, Deliverables, milestone delivery schedules and milestone payment schedules, as the case may be. Upon execution by both Parties, each SOW shall be attached to this MSA Agreement and fully incorporated herein by this reference.

“Term” has the meaning set forth in Paragraph IX below.

II. Statements of Work

1. Adoption of SOWs. The Parties may enter into one or more SOWs for the Services that Customer desires for BSE to perform. A SOW must be separately agreed to in writing by both Parties to be valid. BSE shall issue a draft of each new SOW electronically and Customer may indicate its acceptance by signing the SOW physically or electronically. Once a SOW has been signed by both Parties, it shall be incorporated into and governed by the terms and conditions of this MSA Agreement. In the event of a conflict or inconsistency between the terms contained in the body of this MSA Agreement and the terms of a SOW, the terms of this MSA Agreement shall control to the extent of such conflict or inconsistency, unless the SOW expressly provides otherwise.

III. Blue Sky Event Services

1. Performance of Services. Customer shall be responsible for providing to BSE, in an accurate and timely manner, all Customer Materials necessary for BSE to perform the Services. Unless agreed otherwise, Customer Materials should be delivered at least two (2) business days prior to the corresponding Event. Customer shall provide BSE with reasonable support and assistance in connection with the provision of Services, including, without limitation, access to the Event speakers, Event coordinators and other required resources. Any changes to the initial Event information must be made by Customer in writing and received by BSE at least two (2) business days prior to the Event. BSE shall not be responsible for any failure to comply with any Customer change requests without two (2) business days’ prior written notice. If BSE is responsible for delivering the Event material, Customer agrees to provide the necessary Customer Materials via direct upload to BSE’s Path LMS, email or CD-ROM in advance of the Event. Customer agrees to work with BSE to ensure attendees have adequate access to login/conference call information and any other details attendees need before any Event. If Customer has additional Customer Materials for the Event Archive, BSE may delay the production of the Event Archive until BSE receives the additional Customer Materials. BSE shall not be responsible for any delay or partial or full nonperformance caused by the failure or delay of Customer in providing the necessary Customer Materials.
2. Telephone Help Desk Support Services. For each Event, BSE will provide Customer, and Customer’s authorized users, unlimited email and chat support during normal business hours. Events that include technical support will be staffed on the assumption that no more than 5% of participants will contact Technical Support during the Event. Phone support will be provided during regular business hours and for after-hours Events, and technical support will be staffed from one hour prior to the Event to 30 minutes after the conclusion of the Event. In the event Customer expects to have international callers, BSE will provide phone numbers for various countries throughout the world, provided, however, BSE is not responsible if a participant is unable to properly connect to these calls due to the participant’s equipment (e.g. telephone or computer” or services or no telephone or internet access).
3. Correction Change Requests. Following BSE’s deliver of an Event Archive, Customer may provide BSE with one (1) Correction Change Request. All Correction Change Requests shall be delivered to BSE in electronic format only. Costs for one (1) Correction Change Request to an Event Archive are included in the Service Fees. All additional requests for any corrections or changes outside of the Correction Change Request made by Customer will be billed as set forth in Paragraph V below. Notwithstanding the foregoing, BSE will use commercially reasonable efforts to deliver each Event Archive without errors. However, if errors are found, BSE will promptly correct all the errors at no charge.
4. Editing Change Requests. Customer shall be solely responsible for the cost of any Editing Change Requests related to changes to an Event Archive beyond BSE’s standard product. Other than changes made pursuant to a Correction Change Request, BSE shall not be required to make any editorial changes to an Event Archive after it has delivered the final Event Archive to Customer. In the event Customer submits an Editing Change Request, BSE may accept or deny the request, in its sole discretion, and, in the event BSE elects to make the requested changes, BSE’s work will be billed to Customer in accordance with the provisions of Paragraph V below. All Editing Change Orders will be signed by both Parties and will become a referenced addendum to the MSA Agreement.

IV. Proprietary Rights

1. License Grant to Services. Subject to all terms and provisions of this MSA Agreement, including timely payment of the Service Fees, BSE hereby grants to Customer a non-exclusive, non-transferable, revocable license, without the right to sublicense except as specifically set forth below, to use the Services as more fully set forth in the SOWs. Customer may not assign, rent, lease, sublease, grant a security interest in license or sublicense or otherwise transfer any rights in the use of the Services except that Customer may extend the right to access certain Services to Customer’s members, employees or other designees solely as necessary to use the Services for the purposes as described in the applicable SOW. 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.
2. 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.
3. Prohibitions and Restrictions on Use. Customer is prohibited from reselling the Services or acting as a service bureau capacity. Charging a fee for participants to participate in or attend an Event shall be deemed not to constitute “reselling” the Services. Customer shall not attempt to reverse engineer, modify, decompile, disassemble, translate or seek to derive source code from any part of the Services, the Application or any related software. Customer shall not remove, alter or obscure any of BSE’s or its licensors’ copyright or proprietary rights notices delivered, provided or displayed incident to the Services.
4. License Rights to Customer Materials. During the Term, Customer hereby grants to BSE a non-exclusive, fully-paid, royalty-free, worldwide license, without the right to sublicense, to record, adapt, edit, host, cache, store, archive, index, crawl, create algorithms based on, modify, transcode, reproduce, distribute copies of, perform and display the Event and Customer Materials solely as necessary to display the Event for Customer and otherwise deliver the Services.
5. Customer Ownership. BSE agrees that, notwithstanding anything to the contrary in Section titled BSE Ownership, Customer shall own and retain all right, title, and interest to the Customer Materials, and all components thereof, including any derivative works thereof, and to all Intellectual Property Rights related thereto, including any Event Archives and any Customer Materials stored, published, and performed as part of the Services. Customer is responsible to ensure that all Customer Materials as provided to BSE do not infringe any Intellectual Property Rights of third parties, including by way of violation of copyrighted video, audio, photographs or other images. Customer will be responsible for collecting the Event slides that Customer wants to have included in an Event Archive. Notwithstanding the foregoing, Customer agrees that BSE shall have the freely-revocable right to use Customer’s name and identity information as well as general descriptions regarding Events for BSE’s marketing and business development purposes, including but limited to, using such information in BSE’s marketing materials, customer listing and advertisements.
6. Digital Millennium Copyright Act. The Application is solely a platform that allows Customer to upload, modify, view and provide access to Customer Materials. In the event Customer uploads content not owned by Customer or that Customer is not legally entitled to use, and upon receipt of a claim regarding the same from the copyright owner of such material, BSE may remove such material in compliance with the Digital Millennium Copyright Act. Customer understands that BSE adheres to the Digital Millennium Copyright Act.
7. Handling of Customer Materials. After delivery of the final Event Archive to Customer and termination of this MSA Agreement, BSE may in its sole discretion delete or remove from its servers and files all information or materials it has gathered or formulated to create and to otherwise provide the Services under this MSA Agreement. BSE shall have no responsibility to notify Customer that it will be deleting or removing the information and materials as set forth herein. If Customer has provided BSE with additional Customer Materials to be used for the Event or Event Archive, BSE will use commercially reasonable efforts to return the Customer Materials at Customer’s shipping expense upon completion of the production, provided that BSE may retain and use one copy thereof incident to the license granted herein to BSE for archival non-production and legal compliance purposes.
8. Reservation of Intellectual Property Rights. Except as expressly set forth herein, each Party shall retain all right, title and interest in and to its own Intellectual Property Rights. No Party shall have any rights in the other Party’s Intellectual Property Rights except as expressly granted herein.

V. Financial Provisions

1. Service Fees, Overage Charges, Additional Fees and Costs. Customer will pay BSE the Service Fees set forth in the applicable SOW for the Services and Deliverables. Unless otherwise agreed to by Customer in writing, and except for any Overage Charges incurred by Customer pursuant to a SOW or any additional fees incurred by Customer pursuant to the terms of Paragraph V below, any expenses incurred by BSE in performing the Services will be the sole responsibility of BSE.
2. Payment. Customer shall pay either the full annual amount of the Service Fees set forth on the corresponding SOW in advance or, with the written approval of BSE, may make monthly payments of the corresponding Service Fees. Any Overage Charges described in the SOW or any additional fees incurred by Customer pursuant to Paragraph V of this MSA Agreement shall be invoiced by BSE. If BSE approves monthly payments, the Customer hereby authorizes BSE to make an automatic, recurring monthly charge for that month’s Service Fees as set forth on the SOW. If at any time Customer is delinquent in the payment of any invoice or otherwise is in breach of this MSA Agreement, 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 Service 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 Service Fees 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.
3. 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.
4. Travel Expenses. All travel and other expenses incident to the rendering of services reasonably incurred on behalf of the BSE at the request of the client during the term of this Agreement shall be paid by the Client. If any such expenses are paid in the first instance by the BSE, the Client shall reimburse BSE therefor on presentation of appropriate receipts for any such expenses.

VI. Additional Fees

In addition to the Service Fees, Customer agrees to the following additional charges, each of which, if incurred, will be invoiced by BSE:

• Event Rescheduling Fee (Less than 72 hours from Event start): 25%
• Event Cancellation Fee (Less than 72 hours from Event start): 50%
• Event Cancellation Fee (Between 72 hours and 90 days from Event): 25%
• Event No-Show Cancellation Fee (Same Day Cancellation): 100%
• Training Rescheduling Fee (Less than 24 hours of training start): $35.00
• Training Cancellation Fee (Less than 24 hours of training start): $35.00
• Training No-Show Cancellation Fee (Less than 30 minutes from training start): $75.00
• Failure to meet Minimum Event Commitment for use of Services: An amount equal to the difference between the Minimum Event Commitment during the applicable term and any Service Fee payments paid by Customer for Services during each applicable period during the term of the Service Agreement.
• Additional Corrections or Changes to an Event Archive (beyond the one (1) included Correction Change Request): $150 per hour
• Editing Changes (If requested in writing pursuant to an Editing Change Order and agreed to in writing by BSE): $150 per hour
• Customer requests for special support staffing for an Event: $75 per dedicated Support Technician per hour
• Customer requests for BSE development hours on nights or weekends in connection with the Services: $200 per dedicated Support Technician per hour
• Rush Fee: $1000 within two weeks

VII. Representations, Warranties, and Covenants

1. Mutual Warranties. Each Party represents, warrants, and covenants that (i) such Party has the full right, power, and authority to enter into this MSA Agreement and to perform its respective obligations under this MSA Agreement; (ii) the execution of this MSA Agreement by such Party and the performance by such Party of its obligations and duties under this MSA Agreement 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, this MSA Agreement 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 this MSA Agreement.
2. Infringement Warranties. Customer hereby represents and warrants to BSE that Customer either owns or has obtained written permission or other authorization from the rightful owner of 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.
3. Content Warranties. Customer hereby represents and warrants to BSE that Customer will not publish, post, 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, cancelbots, 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.
4. COPPA Compliance. Customer represents and warrants that, in the event that the Children’s Online Privacy Protection Act (“COPPA”) applies to any websites or online services provided by Customer, Customer represents and warrants to BSE that Customer shall comply with all applicable requirements of COPPA, as amended from time to time, including without limitation: a. Post a clear and comprehensive online privacy policy describing Customer’s information practices for personal information collected online from children; b. Provide direct notice to parents and obtain verifiable parental consent before collecting personal information online from children; c. Give parents the choice of consenting to Customer’s collection and internal use of a child’s information, but in no event shall Customer disclose that information to third parties (unless disclosure is integral to the site or service provided by Customer, in which case, this shall be made clear to parents). d. Provide parents access to their child’s personal information to review and/or have the information deleted; e. Give parents the opportunity to prevent further use or online collection of a child’s personal information; f. Maintain the confidentiality, security, and integrity of information Customer collects from children, including by taking reasonable steps to release such information only to parties capable of maintaining its confidentiality and security; and g. Retain personal information collected online from a child for only as long as is necessary to fulfill the purpose for which it was collected and delete the information using reasonable measures to protect against its unauthorized access or use.
5. 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: (a) will provide the functions and perform in accordance with this MSA Agreement and any service descriptions provided by BSE, and the functionality of the Application will not be materially decreased during the Term; and (b) is of good quality and is and will be free of any Malware; BSE shall not violate the terms of any agreement with any other party by performing under this MSA Agreement.

VIII. Allocation of Liabilities

1. 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 this MSA Agreement, (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 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 this MSA Agreement or may create liability for BSE or its suppliers.
2. Customer COPPA Indemnification. Notwithstanding anything to the contrary in this MSA Agreement, 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 this MSA Agreement or any other violations of COPPA by Customer or its officers, directors, employees, agents, or affiliates.
3. 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.
4. 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 THIS MSA AGREEMENT IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, THE SERVICES PROVIDED OR TO BE PROVIDED BY BSE. 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.

IX. Term and Termination

1. Term. The term of the SOW (the “Initial Term”) shall be 4 years unless otherwise stated in the agreement and shall commence upon the Effective Date. Upon the expiration of the Initial Term, SOW 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 MSA Agreement  and SOW as the “Term.” For customers with contractual commitments of at least one year, Blue Sky eLearn will not increase fees at renewal by more than five percent (5%) annually over fees for the prior Subscription Term, provided that the scope of use remains the same.
2. Termination. The SOW may terminate without notice upon the occurrence of any of the following: (i) the failure by Customer to pay any amount due hereunder by the due date therefor, and failure to cure such breach within thirty (30) days after BSE’s written notice, (ii) the cessation of business by BSE or Customer; or (iii) if Customer makes an assignment of Customer’s business for the benefit of creditors, a petition in bankruptcy is led 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.
3. Effect of Termination. In no event shall any termination relieve Customer of the obligation to pay any Fees payable to BSE for the remainder of the Initial Term. Thereafter, if BSE terminates the SOW 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 SOW provided that BSE shall only be required to deliver a final Event Archive to Customer upon receipt, on or before the date of termination, of all amounts remaining due from Customer hereunder.
4. Termination Assistance. Upon the expiration or termination of the SOW, 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.
5. 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.
6. 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.

X. Miscellaneous Provisions

1. Entire Agreement. This MSA Agreement, together with all SOWs which will be attached hereto, from time to time following mutual execution thereof, constitutes 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 this MSA Agreement shall be binding on either Party unless accepted and signed, physically or electronically, by each Party’s respective officer.
2. Dispute Resolution. This MSA Agreement 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 this MSA Agreement 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.
3. 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 this MSA Agreement, 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, its authorized agents, and BSE and its personnel 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 this MSA Agreement.
4. 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 this MSA Agreement shall be excused during a Force Majeure event.
5. 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.

6. Binding Effect; Assignment. This MSA Agreement 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.
7. Waiver. A failure of either Party to this MSA Agreement to enforce at any time any of the provisions of this MSA Agreement, 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.
8. Severability. In the event that any one or more provisions of this MSA Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this MSA Agreement 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.
9. Counterparts. This MSA Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute a single agreement.