“Agreement” has the meaning set out in an Order Form.
“CFI” has the meaning set out in an Order Form.
“Customer” means the person accessing, downloading, installing or otherwise using the Service as set out in an Order Form.
“Customer Data” means all data or information submitted by Customer or any of its Permitted Users to the Service.
“Deliverable” means any software, studies, documentation or other materials prepared by CFI for Customer as described in an Order Form.
“Effective Date” has the meaning set out in an Order Form.
“Enterprise Terms” means these terms and conditions.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means an order form executed by Customer for the use of the Service, including any schedules, exhibits, or addendums attached thereto, that incorporates these Enterprise Terms by reference.
“Service” means CFI’s financial analyst training and certification programs, as further described by the CFI Website, located at http://www.corporatefinanceinstitute.com.
“Subscription Fee” means the subscription fees (as specified in the Order Form) payable by Customer to CFI for the right to receive access to the Service.
- Grant of License.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and payment of the applicable fees, CFI shall make the Service available to Customer during the Term for Customer’s internal business use.
- Customer User Account; Responsibility for Permitted Users
3.1 Upon Customer’s request, CFI will issue one or more administrator accounts to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Service (each user, and each administrator, a “Permitted User”). Customer will ensure that each Permitted User signs up for a Customer User Account using a verified Customer email address and only uses the Service through its assigned Customer User Account. Unless expressly permitted in an Order Form, Customer will not allow any Permitted User to share its Customer User Account with any other person.
3.2 Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Service in compliance with this Agreement.
3.3 Customer will promptly notify CFI of any actual or suspected unauthorized use of the Service. CFI reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
3.4 Customer will ensure that all individual users of the Service, including Permitted Users, are contractually bound to CFI’s end user terms and conditions of use, which are available at www.corporatefinanceinstitute.com/about-cfi/website-terms-of-use/.
- Use of the Service.
4.1 CFI Responsibilities. CFI shall: (i) in addition to its confidentiality obligations hereunder, not use or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer and the applicable Permitted Users; (ii) use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer’s Permitted Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which CFI shall give at least eight (8) hours’ notice via the Service); or (b) any unavailability caused by circumstances beyond CFI’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CFI employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within CFI’s possession or reasonable control, and denial of service attacks. If specified on an Order Form, CFI will assign a CFI “Customer Success Manager” to assist Customer with set-up, training, on-boarding and ongoing support of the Service.
4.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer User Accounts and for Permitted Users’ compliance with this Agreement and the User Guide. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify CFI promptly of any such unauthorized access or use; (iii) manage Permitted Users and their access to company email to restrict re-activation of a terminated Customer User Account through use of a Customer company email address; and (iv) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
4.3 Use Guidelines. Customer shall not and shall not permit others to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
4.4 Publicity. Customer may not, without the CFI’s prior written consent: (i) issue press releases relating to this Agreement; or (ii) include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines. CFI may, without the prior written consent of Customer: (i) issue any press release or make public announcement (in any medium, including through social media) relating to the subject matter of this Agreement; and (ii) include the name and logo of Customer in lists of customers in accordance with Customer’s standard guidelines.
- Fees & Payment.
5.1 Fees. In consideration for the receipt of the Service, Customer shall pay CFI the Subscription Fee, as specified in an Order Form in accordance with the terms and conditions set out therein.
5.2 Invoicing & Payment. Unless otherwise stated in an Order Form, the fees for the Service will be invoiced not more than thirty (30) days in advance of the Initial Term and any Renewal Term, as applicable. Unless otherwise stated in an invoice, the Subscription Fee is due thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with CFI.
5.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at CFI’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4 Taxes. Unless otherwise stated, CFI’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, without limitation, value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on CFI’s net income or property. If CFI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides CFI with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5 Audit Rights. CFI shall have the right to use the capabilities of the Service to confirm the number of Permitted Users using the Service and Customer’s compliance with this Agreement. If Customer exceeds the number of Permitted Users it is authorized to have under this Agreement, Customer will pay to CFI additional fees for such excess Permitted Users in accordance with this Agreement.
5.6 Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, CFI reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
- Proprietary Rights.
6.1 Reservation of Rights to the Service and Deliverables. Subject to the limited rights expressly granted hereunder, CFI reserves all rights, title and interest in and to the Service and any Deliverables, including, without limitation, all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Subject to Customer’s payment of the Professional Services fees set out in the applicable Order Form, CFI grants to Customer a non-exclusive, non- transferable license to use the Deliverables solely in connection with Customer’s permitted use of the Service as set out in Section 2 of the Agreement.
6.2 Restrictions. Customer shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other timing or use restrictions that are built into the Service; (iii) remove any proprietary notices, labels, or marks from the Service or User Guide; (iv) frame or mirror any content forming part of the Service; (v) access the Service in order to: (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Service; or (vi) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.
6.4 Suggestions. CFI shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Permitted Users relating to the operation of the Service.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including, without limitation, pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
- Warranties & Disclaimers.
8.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. CFI represents and warrants that: (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Permitted User or Customer-uploaded materials or otherwise originating from Customer or a Permitted User).
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CFI MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Mutual Indemnification.
9.1 Indemnification by CFI. Subject to this Agreement, CFI shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Customer by a court of competent jurisdiction in any actions, lawsuits, or proceedings made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party (“IP Claims”); provided, that Customer: (i) promptly gives written notice of each IP Claim to CFI; (ii) gives CFI sole control of the defense and settlement of each IP Claim (provided that CFI may not settle or defend any IP Claim unless it unconditionally releases Customer of all liability); and (iii) provides to CFI, at CFI’s cost, all reasonable assistance in respect to each IP Claim.
9.2 Mitigation. If: (i) CFI becomes aware of an actual or potential IP Claim, or (ii) Customer provides CFI with notice of an actual or potential IP Claim, CFI may (or, in the case of an injunction against Customer, shall), at CFI’s sole option and determination: (a) procure for Customer the right to continue to use the Service; or (b) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to CFI.
9.3 Exclusions. The obligations in Sections 9.1 and 9.2 do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by CFI with other products, software or services not provided by CFI; (ii) any IP Claim related to any Customer Data; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.4 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold CFI harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred, directly or indirectly, from or in connection with any actions, lawsuits, or proceedings made or brought: (i) in respect of Customer’s negligence or willful misconduct resulting in death or bodily injury to any person; or (ii) against CFI by a third party alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party (“Customer Claims”); provided, that, in each case, CFI: (a) promptly gives written notice of each Customer Claim to Customer; (b) gives Customer sole control of the defense and settlement of each Customer Claim (provided that Customer may not settle or defend any Customer Claim unless it unconditionally releases CFI of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance in respect to each Customer Claim.
- Limitation of Liability.
10.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF: (I) $100,000; AND (II) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE (12) TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
- Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Term & Termination.
12.1 Term of Agreement. This Agreement shall commence as of the Effective Date and, unless earlier terminated in accordance with its terms, shall continue in effect for the initial term set out in the Order Form (the “Initial Term”) and will automatically renew for successive one year periods (each, a “Renewal Term”) unless either party provides the other party with written notice of its intention not to renew not less than 60 days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
12.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, CFI shall refund Customer any prepaid fees for any periods after the effective date of termination of the Agreement.
12.3 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to CFI prior to the effective date of termination.
12.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5 through 13.
- General Provisions.
13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by email. Notices to CFI shall be addressed to the attention of the Legal Department at [email protected] Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated in an Order Form.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Governing Law. Unless otherwise stated in an Order Form, this Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to its conflict of law principles No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
13.8 Venue; Waiver of Jury Trial. The courts located in the City of Vancouver, British Columbia, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13.9 Force Majeure. Neither party shall be responsible for its failure to perform its obligations under this Agreement to the extent due to unforeseen circumstances or causes beyond its control, including, without limitation, acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses reasonable efforts to limit the resulting delay in its performance.
13.10 Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
13.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions of these Enterprise Terms and any Order Form, the terms such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13.12 Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, CFI MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON CFI’S WEBSITE. UNLESS OTHERWISE INDICATED BY CFI, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON CFI’S WEBSITE (WHICHEVER IS EARLIER). CUSTOMER’S CONTINUED USE OF THE SERVICE AFTER SUCH AMENDMENT IS ACKNOWLEDGMENT OF AND AGREEMENT WITH SUCH AMENDMENT.
13.13 Non-Solicitation. If Professional Services are set out in an Order Form, for the Term of this Agreement and for a period of twelve (12) months following the Term, Customer agrees not to, directly or indirectly, solicit or recruit any employees or contributors of CFI engaged in the performance of such Professional Services, except that the foregoing will not apply to general solicitation or assistance in connection with any solicitation or recruitment not targeted at CFI’s employees or contributors, including, without limitation, through general advertisements or the efforts of any recruiting or employment agencies not targeted at such employees or contributors.