By checking the box to the left of the text “Accept Terms and Conditions (Institution)”, You (as defined below), on behalf of Licensee (as defined below) are consenting to all of the terms and conditions contained in this agreement (the “Agreement”), which You declare to fully understand and to which You agree and legally bind Licensee as provided hereunder. This Agreement establishes the terms and conditions that regulate the licensing to and use the Web-Portal (as defined below) and/or the Software (as defined below) and/or the Platform (as defined below) and/or the Program (as defined below). This Agreement is confidential and neither You nor any other Representative (as defined below) shall reproduce or discuss its contents with any third party. By You checking the mentioned box, Licensee is agreeing to be bound by the terms herein. Curtanna (as defined below) reserves the right, from time to time, to modify or amend the terms included herein.
This Agreement is entered into by and between Licensee and Curtanna, both of which, intending to be legally bound, understand and agree as follows:
1. Definition of Terms.
1.1 “Accredited Instructor.” All references to “Accredited Instructor” refer to any and all individuals that has been certified as capable to teach the Program’s classes after meeting the requirements set forth by Curtanna, all based and in compliance with the terms of Curtanna’s Instructors Agreement.
1.2 “Authorized Users.” All references to “Authorized Users” refer to Licensee’s employees, faculty and staff or independent contractors hired by Licensee who require accessing and using the Web-Portal and/or the Software and/or the Platform and/or the Program in the performance of their duties and the Participants or their respective legal guardians who require accessing and using the Web-Portal for educational purposes only.
1.3 “Class.” All references to “Class” or “Classes” refer to the teaching period, lasting for as long as the Class Duration posted in the respective Session License, following a structure designed by Curtanna and using the Software as well as the Licensed Information accessible through such use that is compatible with the respective Session Type.
1.4 “Class Duration.” All references to “Class Duration” refer to the teaching period of time that an individual Class shall last, as posted in the respective Session License at the time of purchase.
1.5 “Class Equipment.” All references to “Class Equipment” refer to the equipment necessary to teach a Class, depending on the Session Type and defined by Curtanna from time to time (see Annex 1).
1.6 “Curtanna.” All references to “Curtanna” refer to Curtanna, Inc., the Florida Corporation that is the sole designer, owner and thus rightful licensor of the Software, the Platform and the Program as well as certifier of Accredited Instructors.
1.7 "Customer Content.” All references to “Customer Content” refer to Trainee Instructors’ and/or Accredited Instructors’ and/or Participants’, and/or Licensee’s and/or Representative’s documentation and information supplied by each one of them to Curtanna or collected by the Web-Portal and/or the Software in connection with and/or pursuant to their participation in the Program, all based and in compliance with the terms of the respective Licensing Agreements and/or Instructors Agreements and/or Participants Agreements.
1.8 “Institution.” All references to “Institution” refer to any legal entity that is an educational institution or with comparable goals as an educational institution whose Representative enrolled it in the Web-Portal.
1.9 “Institutional License.” All references to “Institutional License” refer to a free-of-charge, non-transferrable and non-exclusive limited license validly and legally issued by Curtanna in favor of Licensee to access and use the “Institution” section of the Web-Portal and the Licensed Information accessible through such use, all based on and in compliance with the terms of the respective Licensing Agreement.
1.10 “Instructors Agreement.” All references to “Instructors Agreement” means that certain binding document which describes, in detail, the terms and conditions applicable to all Trainee Instructors and Accredited Instructors.
1.11 “Licensed Information.” All references to “Licensed Information” includes any and all Program-related or Program-relevant information, including but not limited to Customer Content, that include: instructions, parameters, videos, messages, pictures, training material, training methods, exercises, activities, class structure, session structure, evaluation criteria, their related functions and tasks, both individually or combined in any way, developed and/or integrated and/or created and/or copyrighted by Curtanna or by a third party subject of being licensed out or sublicensed out by Curtanna and that is accessible either via the Web-Portal or via the Software.
1.12 “Licensee.” All references to “Licensee” refer to Institution, that, after verifying it as such, Curtanna has granted an Institutional License.
1.13 “Licensing Agreement.” All references to “Licensing Agreement” refer to that certain binding document in which Curtanna and an Institution agree to the terms, conditions, details and scope of the Institutional License and of Session Licenses that may be granted to the latter after becoming a Licensee.
1.14 “Licensor.” All references to “Licensor” refer to Curtanna, Inc., the Florida Corporation that is the sole designer and/or owner of the Licensed Information, the Web-Portal, the Software, the Platform and the Program, and thus their rightful licensor as well as certifier of Accredited Instructors.
1.15 “Participant.” All references to “Participant” and/or “Participants” refer to any natural person, of legal age or not, whom is the end beneficiary of the Sessions to which he/she was accepted by the respective Licensee and is thus an Authorized User within the scopes of the Session he/she participated, all based on and in compliance with the terms of the respective Licensing Agreements and/or Participants Agreement.
1.16 “Participants Agreement.” All references to “Participants Agreement” refer to that certain binding document in which a Participant agrees to the terms and conditions to participate in the Program.
1.17 “Personal Equipment.” All references to “Personal Equipment” refer to the non-shareable equipment necessary for Participant to participate in a Class, depending on the Session Type and defined by Curtanna from time to time (see Annex 2).
1.18 “Platform.” All references to “Platform” refer to any or all combinations of information, parts, codes, components, functions or tasks included in the Licensed Information, the Web-Portal and the Software, either originally copyrighted by Curtanna or by a third party, both individually or combined in any way, subject of being licensed or sublicensed out by Curtanna to Licensee, all based on and in compliance with the terms of the Licensing Agreement and/or Instructors Agreement and/or Participants Agreement.
1.19 “Program.” All references to “Program” refer to any or all combinations of information, parts, codes, components, functions or tasks included in the Platform, in Curtanna’s training methods and in Curtanna’s business model, both individually or combined in any way developed, integrated, created and/or copyrighted by Curtanna or by a third party, commercially named “Curtanna Skills for Life” and subject of being licensed out or sublicensed out by Curtanna to Licensee, all based on and in compliance with the terms of the Licensing Agreement and/or Licensing Agreement and/or Instructors Agreement and/or Participants Agreement.
1.20 “Pupil.” All references to “Pupil” and/or “Pupils” refer to a person that requires guardian intervention and consent to participate in the Program.
1.21 “Purchase Order.” All references to “Purchase Order” refer to the document issued by Licensee, using the Web-Portal, where, among other things, type, quantity and fees of the Session License(s) it intends to purchase from Licensor are detailed.
1.22 “Representative.” All references to “Representative” refer to the natural person whom is legal-aged and whom has legal authorization to act on behalf of the respective Licensee.
1.23 “Session.” All references to “Session” or “Sessions” refer to a certain combination of Classes that together complement each other to fulfill the objectives of the Session Type.
1.24 “Session License.” All references to “Session License” or “Session Licenses” refer to a non-transferrable and non-exclusive limited license validly and legally issued by Curtanna in favor of Licensee to access and use the Software and the Licensed Information accessible through such use, all based on and in compliance with the terms of the respective Licensing Agreement.
1.25 “Session Type.” All references to “Session Type” refer to the type of activities, the intensity of competitiveness and of assessments applied on Participants during the Classes of a Session. Examples: Enrichment Skills, Enrichment Fencing Skills, Ranked Fencing Skills.
1.26 “Software.” All references to “Software” refer to Curtanna’s proprietary codes and methods of its custom-developed e-learning, in-class assistance and data collector software for tablet computers, integrated and/or created and/or copyrighted by Curtanna or by a third party and subject of being licensed out by Curtanna to Licensee.
1.27 “Trainee Instructor.” All references to “Trainee Instructor” refer to any and all individuals that apply to attend Licensor’s training workshop and/or attend such training workshop, all in accordance with Curtanna’s Instructors Agreement.
1.28 “You,” and “Your.” All references to “You” and/or “Your” refers to the natural person whom, under the penalty of perjury, hereby declares to be the legal-aged adult whose personal data has been entered in the “Business Contact” section of the “Institutions Registration form” of the Web-Portal, and whom hereby declares, under penalty of perjury, to have legal authorization to provide consent on behalf of the respective Institution and/or Licensee identified in the “Institution” section of the same form.
1.29 “Web-Portal.” All references to “Web-Portal” refer to Curtanna’s proprietary codes and methods of its custom-developed Web-Portal accessible at www.curtanna.com, integrated and/or created and/or copyrighted by Curtanna or by a third party, composed of some public-access pages and forms as well as of restricted-access “Guardian/Participant” and “Institution” sections which are subject of being licensed out by Curtanna to Licensee.
2. Warranty and Legal Authority: You are representing and warranting, under penalty of perjury, that You have full legal authority to provide consent on behalf of the Institution and/or Licensee as its Representative. You declare to have read this agreement and to fully understand its terms. You and Licensee are agreeing to this document freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion or this agreement is held to be invalid the balance, notwithstanding, shall continue in full force and effect.
3. Grant of License
3.1 After Licensor verifies the veracity of the Institution’s application form, which shall take place within ten (10) days after the date of application, Licensor shall grant, and Licensee hereby accepts in advance, a non-transferrable and non-exclusive Institutional License, under the terms and conditions specified in this Agreement. The action that will signal the Institutional License has been granted is Licensor, through the backend of the Web-Portal, allowing Licensee access to the access-restricted “Institution” section of the Web-Portal. Licensee may not enter into any sublicensing agreements under this Agreement. Any rights not expressly granted herein shall be reserved for Licensor. Source code as well as any other information pertaining to the logic, design, or structure of the Web-Portal and/or the Platform and/or the Program is specifically excluded from the Institutional License granted hereunder. Title to the Web-Portal and the Platform and the Program shall at all times remain with Licensor and all Intellectual Property Rights of whatever nature with respect thereto shall be and remain the exclusive property of Licensor. Any derivative, improvement, enhancement, or other rights or goodwill resulting from the Institutional License in question will inure to Licensor and not to Licensee.
3.2 Licensee represents and warrants that it is an educational institution or other such entity with comparable goals as an educational institution and that neither Licensee nor You nor other Representatives nor its Authorized Users is/are interested in competing with parts and/or all of the Program. This License is only available to such educational institutions or comparable entities for use in teaching environments (e.g. classrooms, after school programs, enrichment programs). Licensor shall have the right to immediately terminate this license in the event that it determines, in its sole discretion, that Licensee does not meet these requirements.
4. Term: The Institutional License shall be valid immediately upon granted by Curtanna in accordance to 3.1 above and expire two (2) years after the last class of the last Session Licensee has used. Each Session License shall be valid immediately upon Licensee issues the respective Purchase Order and shall have four possible expiration dates:
4. No-Renewal: Expired Institutional Licenses and Session Licenses are not subject to renewal. Continued use of Session Licenses will require Licensee to purchase additional Session Licenses once the ones purchased have expired. Licensee may purchase additional Session Licenses on the Web-Portal, provided Licensee maintains its eligibility.
5. Use of the Platform/Software – Restrictions and Limitations:
5.1 Subject to the terms of this Agreement, Licensee has the right under the Institutional License, during the Term, to use the “Institution” Section of the Web-Portal and the Licensed Information accessible through such use. Licensee has the right to allow up to three different Accredited Instructors to use the Software and the Licensed Information accessible through such use on Licensee’s tablets, provided such tablets meet Curtanna’s Technical Specifications (see Annex 3), per Session License it ordered and/or purchased in accordance to this Agreement.. Licensee’s and/or the selected Accredited Instructors’ access to the Platform and all of its functionality is application-based and fully-hosted by Licensor.
5.2 You or other Representative and all Licensee’s Authorized Users acknowledge and agree that the Program consist of a combination of technology, information and trade-secrets which are proprietary to Curtanna and vigorously protected and defended by Curtanna. Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users may modify any part or component of the Program nor merge any part of it with another software. Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users may attempt or allow others to attempt to determine the Web-Portal’s or the Software’s source codes, nor copy, modify, adapt, reprogram, translate, disassemble, decompile, nor otherwise reverse engineer any part of the Platform (except to the extent applicable laws specifically prohibit such restriction). Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users may create and/or help others create competitor products, or create derivative works based on the Software and/or the Platform and/or the Program, or the written materials provided with or derived from the Program. Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users may, expressly as provided herein, allow use, disclose, sublicense, lease, rent, or transfer the codes, contents or functionalities of the Software and/or of the Platform and/or of the Program, in whole or in part, to any third party, or provide the benefit of its use to any third parties in any manner. Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users shall delete any proprietary designations, legal notices or other identifiers belonging to Licensor and/or third parties from any information obtained within the scope of the Program. The Platform’s components may not be separated for use on more than one computer. Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users shall sell, assign, disclose, furnish, or redistribute any information received from or gathered as a result of the Program’s use, without Curtanna’s prior written consent, which may be unreasonably withheld.
5.3 Neither Licensee, nor You, nor any other Representative, nor any of Licensee’s Authorized Users may copy or attempt to copy the Program, in whole or in part, and Licensee represents and warrants that it will ensure that the number of Participants does not exceed the maximum amount established for a Session, as posted in the respective Purchase Order. Each Authorized User shall relate and be limited to a specific Accredited Instructor and/or Representative and/or administrator who is granted access to the Platform for the applicable Term, which is defined in Section 4 above, and their right to use is not assignable or transferable. Licensor shall have the right to monitor and access user accounts at any time for the purposes of ensuring compliance with this section, for the purposes of improving or maintaining its service, and/or for any other purpose related to compliance with this Agreement.
5.4 In the event that Licensee requires additional Authorized Users, it may add additional Authorized Users to an existing Session License.
6. Fees and Payment Terms.
6.1 Licensee shall pay Licensor no license fees associated with obtaining an Institutional License. Licensee shall pay Licensor the license fees for use of the Software and of the Licensed Information accessible through such use, relative to each Session License, as indicated in the respective Purchase Order. Licensee’s payment entitles Licensee and its USA-based Authorized Users to access and use the Software and a limited use of the Licensed Information accessible through such use, in the United States only, unless otherwise indicated on the Purchase Order, in accordance with the terms of this Agreement Licensee is also responsible for the payment of all related shipment costs as well as all sales, use, shipment or other taxes or charges assessed in connection with every Session License and/or Purchase Order.
6.2 Upon receipt of Purchase Order, Curtanna shall issue and deliver at the email provided for such purpose, an Invoice reflecting the total amount due and owing. All amounts payable under this Agreement will be due thirty (30) days from the date of the applicable invoice. Licensee’s access to the Software and to the Licensed Information accessible through such use relative to every Session License will be immediate upon issuance of he Purchase Order, but will be suspended and the Session License will automatically expire if Licensor does not receive payment in full before or by the invoice’s due date.
6.3 Licensor reserves the right to revise its charges and billing practices at any time hereinafter.
7.1 In General: In the event that either party believes that the other has breached any obligations under this Agreement, or if Licensor believes that Licensee has exceeded the scope of the Institutional License and/or of a Session License, such party shall so notify the breaching party in writing. The breaching party will have ten (10) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within ten (10) days, the non-breaching party will have the right to terminate this Agreement without further notice. If Licensee is the breaching party, Licensor may recover, in addition to any rights and remedies the sum of (i) all unpaid charges outstanding, (ii) the applicable charges through the end of the Term of this Agreement, and (iii) reasonable attorneys' fees. Licensee acknowledges and agrees that its sole remedy, for any breach by Licensor, shall be exclusively limited to the reimbursement of monies paid for the Session License in question.
7.2 For Software: Licensee may terminate this Agreement as it relates to its access to the Software at any time by discontinuing its use and deleting and removing any and all copies of any and all of its parts from any and all computer(s), mobile device(s), and storage devices where they had been placed. Termination in no way entitles Licensee to a refund of monies paid for Session Licenses, except for what is provided for in Section 6.1 above.
8. Computer Equipment & Software: Licensee is solely responsible for selecting, purchasing, installing, and maintaining the equipment, software, and telecommunications needed to access and use the components of the Platform either through the Institutional License or a Session License. Licensee’s failure to do so does not relieve Licensee of payment obligations to Licensor.
9. Proprietary Rights.
9.1 Licensee acknowledges that the Web-Portal, the Software, the Platform and the Program are proprietary to Licensor and that all rights thereto, including all intellectual property rights, are owned by Licensor. Licensee further acknowledges that the Web-Portal, the Software, the Platform and the Program contain trade secrets of Licensor and that the codes and contents of the Web-Portal, the Software and the Platform are protected by U.S. copyright and other intellectual property laws. Licensee bears all risk of loss of components of the Platform while it is being used by Licensee. Licensee agrees to notify Licensor immediately of the unauthorized possession, access or use of the Web-Portal, and/or the Software and/or of the Platform. Licensee will promptly furnish full details of such unauthorized access, possession or use to Licensor, will assist in preventing the recurrence of such access, possession or use, and will cooperate, at Licensee’s expense, with Licensor to protect Licensor’s proprietary rights, including any intellectual property rights. Licensee’s compliance with this provision shall not be construed as a waiver of any right of Licensor to recover damages from, or obtain other relief, against Licensee.
9.2 Licensee acknowledges and agrees that the Web-Portal, the Software and the Platform are unique and that the injury suffered by Licensor in the event of a breach by the Licensee of any of its obligations hereunder would be irreparable and otherwise of a character which could not be fully compensated for solely by recovery of monetary damages. Accordingly, Licensee agrees that, without in any way limiting the other rights or remedies of Licensor, Licensor shall be entitled to apply to obtain both equitable relief, restraining order, injunction, decree, or remedy, as may be appropriate to restrain any breach or threatened breach of this License.
10. Permitted Uses of Licensed Information: You or other Representative and Licensee’s Authorized Users are entitled to access Licensed Information from Licensor only during the Term of this Agreement and may utilize it for educational purposes only.
11. User Access.
11.1 For the Software and the Licensed Information accessible through it relative to a specific Session License:
11.1.1 Licensee will restrict the number of Accredited Instructors to three (3) with access to the Software and the number of benefited Participants to the total shown for every Session License on the respective Purchase Order. Any other user shall be considered an unauthorized user and shall give Licensor, the immediate right to revoke the license in question, without any refund or reimbursement of monies paid, irrespective of the term left under Licensee’s Institutional License or Session License. Only Accredited Instructors shall be authorized to use the Software.
12. Limitations on Use.
12.1 You or other Representative must restrict access to the Licensed Information to Authorized Users.
12.2 Instructional guides and materials are provided solely to support Authorized Users’ use of the Licensed Information. Licensed Information, or any part thereof, may not be used in any manner, except as expressly permitted under this Agreement. Neither Licensee, nor You, nor any other Representative, nor any Licensee’s Authorized User may copy, modify, adapt, translate, reverse engineer, decompile, disassemble, create competitor products, or create derivative works based on the Licensed Information, or the written materials provided with or derived from the Licensed Information, without prior written consent of Licensor, and neither Licensee, nor You, nor any other Representative, nor any Licensee’s Authorized User shall delete any proprietary designations, legal notices or other identifiers belonging to third parties from any information obtained or sent using the Licensed Information. The product’s component parts may not be separated for use on more than one computer. Neither Licensee, nor You, nor any other Representative, nor any Licensee’s Authorized User shall sell, assign, disclose, furnish, or redistribute any Licensed Information to any other person, firm, institution, or entity.
12.3 Neither Licensee, nor You, nor any other Representative, nor any Licensee’s Authorized User may use the Licensed Information with any other database(s), including, but not limited to, the electronic reproduction of the Licensed Information on any internet, intranet or other website.
12.4 While this Agreement is in effect, neither Licensee, nor You, nor any other Representative, nor any Licensee’s Authorized User may use, aid, or permit any other party to use the Licensed Information for any illegal purposes. In the event that either Licensee or You or other Representative or any Licensee’s Authorized User become aware that the security of their login information to Software or Platform has been compromised or breached, Licensee shall be responsible to have the account’s login credentials changed. Additionally, Licensee shall be responsible to promptly take the necessary steps to deactivate/change the login credentials for any individual (e.g., former employee) that no longer is an Authorized User to access the Licensed Information.
12.5 Licensee and You represent and warrant that neither Licensee nor You are entering into this Agreement as part of, or to receive the benefit of, a consortium.
12.6 Licensee shall comply with all applicable local, state, national and international laws and regulations, including those related to data privacy, international communications, and exportation of technical or personal data.
12.7 Neither You, nor any other Representative, nor any Licensee’s Authorized User shall impersonate any person or use a false name while using the Web-Portal, the Software or the Platform. Licensee agrees to obtain all required permissions if You or other Representative or any Licensee’s Authorized User use the Web-Portal and/or the Software and/or the Platform to receive, upload, download, display, distribute, or execute software or perform other works protected by intellectual property laws including copyright, trademark, trade secret and patent laws. Licensee agrees to cooperate with Licensor and provide requested information in connection with all security and use matters. Licensee agrees to notify Licensor promptly if You or other Representative or any Licensee’s Authorized User suspect unauthorized use of their respective user ID. Licensee remains liable for unauthorized use until Licensee’s notification to Licensor.
13. Session License
13.1 Purchase of Session Licenses: The Session Licenses You or other Representative had selected will be listed on the Web-Portal’s “Store” section’s “Checkout” page at the moment you click on the “Place Order” button (the “Licenses Being Ordered”) shall give Licensee a limited right to use the Program based on the limitations set forth on this Agreement.
13.2 Grant of Session License. Session Licenses are sold by Sessions (“Session(s)”) as described below. Curtanna offers different combination of features of the Program packaged into different types of Sessions from which, You or other Representative can choose. The possible variable features in a Session package are: i) quantity of Classes per Session, ii) Class Duration, iii) minimum quantity of Participants, iv) maximum quantity of Participants and v) Session Type. Every Session License sold shall be deemed to have been granted a license to use the Program hereunder. For every one of the Licenses Being Ordered Curtanna hereby grants and Licensee hereby accepts a non-transferrable and non-exclusive Session License characterized by the clearly posted combination of variables mentioned above. Each Session and therefore all Classes within such Session, shall meet, the following requirements:
13.4 Fees and Payment Terms. For any Session License purchase, Licensee shall pay Licensor the fees for its use as may be determined by Licensor. The corresponding fees for use are posted at the time Licensee selects them for purchase.
13.5 Participant Registration. Licensee is not responsible for registering Participants to the Program. Licensee shall provide the marketing materials and announcements with instructions to potential Participants and/or their legal guardians on how to register for the Program through the Web-Portal. The Participant and/or their legal guardian will then be responsible for visiting the Web-Portal and insuring that registration has occurred. The Web-Portal accepts Participants sign up for a specific Session on a first come first serve basis and therefore the registration process will be closed once the number of maximum students per Session has been met. As the maximum number of Participants is reached, a waiting list will be open.
13.6 Revocation or Loss of Eligibility. Session Licenses may not be used in any manner, except as expressly permitted under this Agreement. Misuse, unauthorized use, impermissible distribution, sale, assignment, or disclosure of the Session License or of the respective Licensed Information may result in its immediate revocation or loss of Licensee’s eligibility to continue to be licensed by Licensor in any way.
14. Purchase of Equipment: By clicking on the “Place Order” button at the end of the purchase process at the Guardian/Store section of Curtanna’s Web-Portal, to which You have special access, You are delivering to Curtanna an irrevocable Purchase Order, offering to purchase from Curtanna the equipment that You selected, each in the quantity that You indicate and each for the price posted, subject exclusively to all the terms and conditions set forth herein. Curtanna, in its sole discretion, shall have thirty-days (30) to accept or decline your offer to purchase and will do so by sending You via email an invoice setting forth the details of the purchase. The quality and prices of the goods, as well as the various sales packages or combinations thereof, are displayed on the curtanna.com website and are subject to change, from time to time, at Curtanna’s sole discretion.
14.1 Payment. Payment for the equipment is due within 15 days after the invoice have been delivered to You and Curtanna has received, by any written means, confirmation of such receipt.
14.2 Delivery, Title, Risk of Loss, and Acceptance. Curtanna shall deliver the equipment FOB no more than 20 days after receiving payment of the respective Invoice. Title to and risk of loss of the equipment will pass to You upon such delivery by Curtanna. Any stated delivery dates are approximate. Curtanna will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date. The equipment shall be packaged appropriately and all cartons shall be clearly identified with the respective Purchase Order number. Delivery of the equipment in an undamaged condition to your delivery address as listed on the Purchase Order shall constitute "Delivery" to You. A packing list indicating each item and item quantity shipped shall accompany every shipment. The packing list shall be attached to the exterior of one of the containers in each shipment in a conspicuous manner. The Purchase Order number must also appear on all packing list, invoices and correspondence. All items "not found" shall be noted and the anticipated availability of the items shall be indicated clearly on the packing list. No substitutions shall be made without prior authorization by You. Upon your acceptance of the equipment, which acceptance shall be identified by Curtanna as taking possession of the equipment, such acceptance shall acknowledge that the equipment is in good order and condition, that You are satisfied with the same, and that Curtanna has made no representation or warranty, expressed or implied, with respect to such item of equipment. All equipment is sold in an “as is” condition. In the event that you do not accept the equipment, because it has been delivered with substantial material defects, Curtanna shall refund all prior payments within fifteen (15) days of receipt of notification from You that You do not accept the equipment.
14.3 Taxes. All taxes, license fees and other expenses associated with the equipment and its shipment shall be paid by You.
14.4 Maintenance and Repair. All maintenance and repair costs to the equipment shall be paid by You, and Curtanna is hereby relieved from any responsibility to maintain or repair said equipment, all said equipment being sold in an “as is” condition.
14.5 Indemnification. You shall indemnify and hold Curtanna, its trustees, officers, employees, and agents harmless from any loss, lawsuit, liability, damage, cost and expense (including reasonable attorneys' fees) which may arise out of or result from (i) claims by third persons against You that the equipment has caused damage to property or bodily injury (including death); or (ii) the acts or omissions of Curtanna, its agents or employees in connection with this Agreement; or (iii) any defects in any equipment supplied by Curtanna; or (iv) any breach or default in the performance of the obligations of Curtanna hereunder including any breach of warranty. Company's indemnification obligations hereunder shall not apply to the extent that any claim is caused by Your negligence or misconduct of that of Your dependents.
14.6 Training. In the case of Institutions purchasing equipment, prior to acceptance of the equipment or at such other time as the parties may mutually agree, Curtanna shall provide training in operation of such equipment for Accredited Instructors designated by You. Such training is available through www.curtanna.com.
14.7 Equipment Warranty. The equipment is being sold “as is” and Curtanna disclaims all warranties of quality, whether express or implied, including the warranties of merchantability and fitness for a particular purpose. You acknowledge that You have not been induced by any statements or representations of any person with respect to the quality or condition of the equipment and that no such statements or representations have been made. You acknowledge that You rely solely on the investigations, examinations, and inspections that You choose to make and the Curtanna has afforded You the opportunity for full and complete investigations, examinations, and inspections.
14.8 Default. Default by You in payment (except in the case of a bona fide dispute) or performance of any material duty or obligation under this Agreement, shall, at the sole option of Curtanna, if the default is not cured within thirty (30) days from and after your receipt of written notice from Curtanna of the default, constitute a default of this Agreement. In such an event, Curtanna, at its sole option, may employ any remedy then available to it, whether at law or in equity, including, but not limited, to the following: a) Withhold performance or further performance hereunder until all such defaults have been cured, provided, however, that Curtanna shall continue to perform hereunder in the event of a bona fide payment dispute, which has been communicated to Curtanna; or b) Pursue any other rights and remedies available to Curtanna under the laws of the State of Florida.
14.9 Force Majeure. Curtanna will not be liable for delays in performance or for non-performance due to unforeseen circumstances or causes beyond Curtanna’s reasonable control.
Amendments. No amendment to this agreement will be effective unless it is in writing and agreed upon by both parties.
15.1 The Information Curtanna Collects. Through the platform, Curtanna collects two kinds of information: general information and personal information. General information is not specific and cannot be traced in any way to an individual. Such information includes certain non-personal information (such as the time of day the site is accessed) and certain information in aggregate form (such as statistics relating to the number and frequency of visitors to the site and statistics relating to student performance).
15.2 Curtanna also uses the technology called "cookies", which involves placing a small text file on the visitor’s computer. The cookie will assign a unique identifying number to the visitor’s web browser, allowing Curtanna and its web properties to recognize the visitor’s browser (but not otherwise identify the visitor) and passively track activities on the site. Data collected from Curtanna cookies is general data and used only in the aggregate; our cookies do not access, collect, or reveal any personal information or other data stored on the visitor’s computer.
15.3 Curtanna has designed the Web-Portal for educational institutions, instructors, and parents, not children. For that reason, Curtanna does not knowingly collect personal information from children who may visit this site, and Curtanna does not want to include any such information in its customer databases. Curtanna recommends that parents monitor their children's use of the Internet.
16. Limitation of Liability.
16.1 The Platform and Licensed Information are provided “as is” and neither Licensor nor any third party software or data provider makes any warranty or representation, either express or implied, with respect to any Licensed Information provided, including its quality, accuracy, completeness, performance, merchantability, or fitness for a particular purpose. Licensee assumes the entire risk as to the results and performance of the Licensed Information. Licensor does not warrant, guarantee, or make any representations regarding the use of, or the results obtained with the licensed information in terms of accuracy, correctness, or reliability.
16.2 In no event will Licensor or its third party software or data providers be liable for direct, indirect, special, incidental, or consequential damages arising out of delays, errors, omissions, inaccuracies, or the use or inability to use the Licensed Information or documentation, or for interruption of the Licensed Information, from whatever cause. This will apply even if Licensor or its third party providers have been advised that the possibility of such damages exists.
16.3 Neither Licensor nor any third party provider is responsible for any costs, including those incurred as a result of lost profits or revenue, loss of data or Data, the cost of recovering such programs, data, the cost of any substitute program, claims by third parties, or for other similar costs. Except for Licensor’s indemnification obligations set forth in Section 16.2 or in the case of Licensor’s breach of this Section 15, in no case will Licensor‘s or any third party provider’s liability exceed the amount of the fees paid for the Session Licenses in question.
16.4 In no event shall Licensee be liable for any special, indirect, incidental, consequential or punitive damages based on any theory of contract, tort, strict liability, statute or under any other legal or equitable principle or otherwise.
17. Hold Harmless/Indemnification.
17.1 Licensee’s Indemnification Obligations. Licensee agrees to defend, indemnify and hold Licensor and any third party or affiliate provider harmless from and against all third party claims and damages (including reasonable attorneys’ fees) regarding Licensee’s use of the Web-Portal, the Software and/or the Platform and/or any Licensed Information, unless the claims or damages are due to Licensor’s or any third party or affiliate provider’s gross negligence or willful misconduct or arise out of an allegation for which Licensor is obligated to indemnify Licensee.
17.2 Licensor’s Indemnification Obligations. Licensor shall defend, indemnify and hold Licensee harmless at Licensor’s expense in any suit, claim or proceeding brought against Licensee alleging that Licensee’s use of any Licensed Information delivered to Licensee hereunder directly infringes a United States patent, copyright, trademark, trade secret, or other third party proprietary right, provided Licensor is (i) promptly notified, (ii) given the assistance required at Licensor’s expense, and (iii) permitted to retain legal counsel of Licensor’s choice and to direct the defense. Licensor also agrees to pay any damages and costs awarded against Licensee by final judgment of a court of last resort in any such suit or any agreed settlement amount on account of any such alleged infringement, but Licensor will have no liability for settlements or costs incurred without its consent. Should Licensee’s use of any such Licensed Information be enjoined, or in the event that Licensor desires to minimize its liability hereunder, Licensor will, at its option and expense, (i) substitute fully equivalent non-infringing Licensed Information for the infringing item; (ii) modify the infringing item so that it no longer infringes but remains substantially equivalent; or (iii) obtain for Licensee the right to continue use of such item. If none of the foregoing is feasible, Licensor will terminate Licensee’s access to the Licensed Information and refund to Licensee the applicable fees paid by Licensee for the infringing item(s). The foregoing states the entire liability of Licensor and Licensee’s sole remedy for infringement or for any breach of warranty of non-infringement, express or implied. This indemnity will not apply to any alleged infringement based upon licensee’s combination of other software or information with the Licensed Information where the Licensed Information would not have otherwise infringed on its own.
18. Warranties. While the Program is designed to improve Participants’ agility, balance, coordination and boost self-confidence, Curtanna cannot guarantee that Participants’ participation will result in any specific result, achievement, or specific qualification.
19. Ownership of Data. Curtanna owns all aggregate data collected through its Platform which includes data gathered by instructors on Participants’ participation, performance, and assessments.
20. Periodic Updates. Licensor shall provide to Licensee, without additional charge, any and all routine Software changes and updates intended to provide general improvements to the performance of the Software, to the Licensed Information, or the Platform. These updates may be required to comply with applicable federal statutes and regulations or may be general improvements intended to improve the educational aspect of the Program.
21. Marketing Materials. Upon granting of the Institutional License, Licensor shall provide to Licensee, with marketing material consisting of one banner, one roll-up and up to 100 printed brochures to be distributed to prospective Participants without cost to Licensee. Licensor shall also provide Licensee, at no cost, an e-flyer describing the Platform, so that Licensee may distribute same to prospective Participants as well. Licensee shall refrain from making any alterations, additions or deletions to such marketing material. Curtanna, may, in its sole discretion, refrain from providing such marketing materials, if Curtanna believes same will not have a significant impact on prospective Participants or if an institution does not need them.
22. No Refunds. Licensor makes no representations as to the suitability, fitness or purpose of its Platform as provided herein above, and therefore does not warrant any results that might be achieved through its use. Consequently, Licensor shall not provide Licensee with any refunds for claims made by any Authorized User. Licensee will have the discretion to set your own warranty policies and standards, provided that Licensee shall be solely liable for any refunds, claims or demands made therein under by any of your Authorized Users.
23.1 Except for the limited, non-exclusive licenses granted to Licensee in this Agreement, all Licensed Information provided by Licensor and/or its third party or affiliate providers in all languages, formats, and media throughout the world will continue to be the exclusive intellectual property of Licensor and/or its third party or affiliate providers. Nothing in this Agreement constitutes a waiver of Licensor’s nor its third party or affiliate providers’ rights under the applicable intellectual property laws. In the event that this Agreement is terminated, Licensee, You or any other Representative and Licensee’s Authorized Users agree to erase any and all parts of the Software and of the Platform from any and all devices in which they had been installed. Licensor will not be responsible for performance problems due to circumstances beyond its reasonable control.
23.2 In the event that Licensor discontinues the production, sale or licensing of any Licensed Information and does not substitute equivalent Licensed Information for the discontinued Licensed Information, Licensor will give the Licensee reasonable advance notice of such discontinuation, and upon such date of discontinuation, Licensor shall have the right to terminate the applicable Purchase Order as to such discontinued Licensed Information. As of the date of termination of such Purchase Order, Licensor shall refund to Licensee, on a pro-rated basis, any applicable pre-paid fees for the discontinued Licensed Information, and Licensor shall have no further obligation to provide support as provided for in this Agreement.
23.3 This Agreement, including the information on the respective Purchase Order and any amendments or addendums that specifically reference this Agreement, constitutes the entire contract between Licensee and Licensor with regards to the subject matter addressed herein. All prior agreements and all oral or collateral representations, agreements, and understandings are superseded by this Agreement. Licensee acknowledges and agrees that no representations have been made by Licensor other than as expressly set forth in this Agreement and that Licensee has not relied on any representations not expressly set forth herein. If any of the provisions within this Agreement and the Purchase Order are contradictory or inconsistent, then the provisions of this Agreement will control unless the Purchase Order indicates otherwise. Notwithstanding the above, Licensee may be required to review and accept third party or affiliate click-through license agreements before accessing third party or affiliate provider Licensed Information. Any additional or conflicting terms contained in any Licensee purchase order, proposal or other document shall be deemed to be rejected by Licensor without need of further notice of objection, even if such document is acknowledged or accepted by Licensor, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Licensor.
23.4 Except as expressly provided herein, this Agreement, or any part thereof, cannot be changed, waived, or discharged other than by a statement in writing signed by Licensee and Licensor.
23.5 If a court of competent jurisdiction declares any section of this Agreement to be invalid, unlawful or unenforceable as drafted, such section will be amended and construed in a manner designed to effectuate the purposes of the section to the fullest extent permitted by law. If such section cannot be so amended and construed, it shall be severed, and the remaining sections will remain unimpaired and in full force and effect to the fullest extent permitted by law.
23.6 Licensor may assign or transfer its rights in this Agreement. Licensee may not sublicense, assign, or transfer its interests in this Agreement.
23.7 Notices under this Agreement will be considered to have been given when mailed by first class mail, postage paid, to Licensor’s address as it appears on Licensor’s website, and to Licensee at Licensee’s address as indicated on the latest Purchase Order. Such addresses may be changed by written notice as stipulated in this Agreement.
23.8 This Agreement will be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflicts of law. Licensee expressly agrees that all actions taken in connection with this Agreement and/or Licensor will be initiated in Broward County, Florida.
23.9 Customer Content and Feedback. Licensor may collect and use information related to Licensee’s or its Authorized Users use of the Licensed Information, to test, develop, improve and enhance its products and services, as long as such information is not identifiable to the Licensee or any individual user. If Licensee provides Licensor with any feedback on Licensor’s products and services, Licensee grants Licensor and Licensor’s affiliates the right to use such feedback to develop their services and products and to create and own derivative works based on such feedback. For more information on the gathering and use of Customer Content, please visit our Data Policy, at our website. Our Data Policy shall be incorporated herein as an integral part of this Licensing Agreement.
Tablet Technica Spec