MASTER SERVICES AGREEMENT – LMS ARREARS

Date Last Updated: April 23rd, 2024

TERMS AND CONDITIONS

The Terms and Conditions below govern Company’s purchase and use of the Products.  Capitalized terms used in these Terms and Conditions but not defined below are defined in the Master Services Agreement or other agreement with 360 governing Company’s purchase and use of the Products and that references and incorporates these Terms and Conditions (together, referred to as the “Agreement”).

RECITALS

Whereas 360 owns and licenses numerous online education and training courses, products and services and markets such items through its proprietary websites and other means;

Whereas 360 owns a learning management system that can host and deliver such online education; and

Whereas Company desires to purchase and utilize for Company’s own internal business purposes certain of the 360 online education and training courses, products and services and have 360 deliver such through its learning management system.

Now, therefore, in consideration of the mutual promises and conditions herein contained, the parties hereby agree as follows:

1. DEFINITIONS

“Annual Commitment” means the amount, if any, of Product purchases Company commits to purchase under this Agreement each annual period of this Agreement.

“License Fees” means the non-refundable fees, if any, that is set forth in the Agreement for Company’s access to LMS360 and its selected features and functionality.

“Annual License Fee Waiver Threshold” means the amount of Product purchase Fees as set forth in the Agreement that if achieved by Company, would entitle Company to a waiver of the License Fees in the subsequent annual period.

“Company LMS Account” means a unique account established for Company (i) to allow Company Users to purchase and enroll in Products on LMS360, and (ii) pursuant to which 360 will generate an invoice to Company for such purchases.

“Company LMS Account Credentials” means the login ID/access rights for Company issued or established by 360 to enable Company to administer online access by Company Users to the Company LMS Account.

“Company Users” means Company’s employees, consultants and other Company personnel who Company authorizes to access and use the Company LMS Account to purchase and enroll in Products on LMS360.

“Course” means one of 360’s online training courses

“Damages” means any and all claims, actions, demands, liabilities, losses, expenses or damages, including reasonable attorneys’ fees.

“Fees” means the fees and prices specified in the Agreement to be paid by Company to 360 hereunder for Products and services provided by 360 to Company.

“LMS360” means 360’s learning management system that includes online training delivery, enrollment, and testing applications and systems.

“Products” means Courses, bundles of Courses, Course bundles and libraries, and related Course materials and services owned or licensed by 360 as specified in the Agreement that are authorized by 360 for Company and/or Company Users to purchase, access and utilize under this Agreement and which may be changed from time to time by 360 pursuant to Section 2.3.

“Set-Up Fee” means the non-refundable fee, if any, that is set forth in the Agreement for the services provided by 360 to set up Company’s access to LMS360 as described in Section 2.1 (“Set-Up Services”).

“Terms of Use” means 360’s standard terms and conditions pertaining to the use of LMS360 and Products as specified at https://www.360training.com/terms-of-use/, which may be modified by 360 from time to time.

2. 360 OBLIGATIONS

2.1       Set-Up Services.  Promptly after the Effective Date or the receipt by 360, if applicable, of any Set-Up Fee, whichever is later, 360 will provide the following Set-Up Services: (i)  establish Company’s access to LMS360 reflecting the Products and prices specified in the Agreement; and (ii) set up the Company LMS Account, and issue or establish  Company LMS Account Credentials.

2.2       Company LMS Account Access Operation and Support.   Once the Company’s access to LMS360 and Company LMS Account is operational, 360 will perform the following tasks: (i) provide customer support for Company Users consistent with 360’s normal call center support hours provided to its customers; (ii) issue certificates or accreditations upon successful completion of Courses by Company Users; (iii) as necessary or required pursuant to Product requirements and attributes, ship any Product materials and accreditations/certifications to Company Users; and (iv) pay all applicable regulatory fees associated with the use or completion of  Courses. 

2.3       Product Changes.  For regulatory, licensing, and other reasons, 360 reserves the right to discontinue providing one or more Products specified in the Agreement upon written notice to Company.    In such an event, 360 shall use commercially reasonable efforts to promptly replace any discontinued Product with a similar, comparable, or substitute Product if and when available.

3. COMPANY OBLIGATIONS

3.1       Company LMS Account Administrator.  Company designates the authorized representative specified in the Agreement to be the Company LMS Account administrator to manage the Company LMS Account for Company including designating Company Users.  Such representative may be changed at any time upon Company’s written notice to 360.

3.2       Responsibility for Company LMS Account.  Company will be responsible for all purchases and enrollments in Products obtained through the use of the Company LMS Account whether or not such purchases or enrollments were authorized by Company.  Accordingly, Company will safeguard such Company LMS Account and only inform such Company Users of the Company LMS Account and how to use it.  Company will notify 360 immediately if it believes the Company LMS Account has been compromised or been subject to unauthorized use.

3.3       Enrollment Cancelations.  To the extent Company believes that any enrollment in a Product was made in error or was unauthorized, Client will immediately notify 360’s customer support organization.  If such enrollment qualifies to be canceled, Company will not be charged for such canceled enrollment.  To qualify for an enrollment cancelation, such enrollment must qualify for a refund pursuant to 360’s refund policy which may be found at  https://www.360training.com/refund-policy and which may be changed from time to time in 360’s sole discretion.   Notwithstanding the foregoing, Company must contact 360’s customer support organization within 72 hours of such enrollment or within 48 hours of having access to an enrollment report from the LMS360 or a 360 invoice reflecting such enrollment, whichever is later.  360 will determine whether or not such an enrollment is eligible for cancelation pursuant to the criteria specified herein and such determination will be final.

3.4       Annual Commitment .  During each annual period of this Agreement, Company will purchase Products through the Company LMS Account in an amount totaling at least the Annual Commitment. The first annual period of this Agreement will commence with the Effective Date and each subsequent annual period will commence on the applicable anniversary date of the Effective Date.  If by the end of each annual period Company has not purchased Products totaling at least the Annual Commitment, then 360 will invoice Company for the difference between the Annual Commitment and the actual amount of purchases of Products made by Company during the annual period just ended. Purchases by Company Users through the Company LMS Account will apply toward the Annual Commitment.

4. LICENSE

4.1       License Grant. Subject to the terms and conditions of this Agreement, 360 grants to Company during the term of this Agreement a non-exclusive, non-transferable and non-sublicenseable license for Company Users to access the LMS360 and the Products via the Company LMS Account solely for Company’s internal business purposes. As between the parties and except for the limited express license granted to Company under this Agreement, 360 will retain ownership of all right, title and interest, including all related intellectual property rights, in and to the Products, LMS360, Company LMS Account, 360 trademarks, any data and content contained therein, and any underlying source code.

4.2       Restrictions. Company will not directly or indirectly through a third party, nor authorize any third party to, do any of the following: (i) copy the LMS360, Company LMS Account or the Products, or any part thereof; (ii) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code from the LMS360; (iii) write or develop any derivative or other software programs based, in whole or in part, upon the LMS360; (iv) provide access to the Company LMS Account or Products, in whole or in part, to any third party who is not a Company User; (v) represent that the Products, Company LMS Account or the LMS360 are owned or controlled by Company; (vi) use the LMS360, Company LMS Account or Products in violation of any applicable law, including export laws; (vii) sell, resell, rent, lease or lend access to the Company LMS Account or the Products, including using on a service bureau or time sharing basis; (viii) interfere with or disrupt the integrity or performance of the LMS360 or any data contained therein; (ix) attempt to gain unauthorized access to the LMS360 or its related data, systems or networks; (x) publish or disclose to third parties any evaluation of the LMS360 without 360’s prior written consent; and/or (xi) perform vulnerability, load or any other test of the LMS360 without 360’s prior written consent.  Company is responsible for compliance by each Company User with the terms of this Agreement and the Terms of Use.

4.3       Terms of Use.  Company and Company Users will be bound by and subject to the Terms of Use.  To the extent that any provisions in the Terms of Use conflicts with the provisions of this Agreement, the provisions of this Agreement will prevail.

4.4       No Sharing of Courses, Bundles, or Libraries.  A Course may not be assigned to another Company User once a Company User has enrolled in a Course.   Libraries and Bundles of Courses are available for a single Company User only and may not be separated or used by multiple Company Users.

4.5       No Other Rights. Except as expressly set forth in this Agreement, no additional rights are granted to Company. 360 hereby reserves all rights not expressly granted to Company under this Agreement.

5. FEES AND PAYMENT

5.1       Set-Up Fee.  Company will promptly pay to 360 any applicable Set-Up Fee pursuant to the payment terms herein.

5.2       License Fees.  360 will invoice Company during the term of this Agreement for the License Fees, if any, and Company will pay such invoice pursuant to the payment terms herein. The first annual period hereunder will commence on the Effective Date.  Notwithstanding the foregoing, if total purchases made by Company and Company Users pursuant to this Agreement meet or exceed the Annual License Fee Waiver Threshold during any such annual period, 360 will waive the License Fees for the subsequent annual period.   After the first anniversary date of this Agreement and no more frequently than annually, 360 may increase the License Fees upon notice to Company by the greater of (i) 7.5% or (ii) the annualized change in the Consumer Price Index in the calendar quarter preceding any such price change.

5.3       Product Prices.  Prices of Products are set forth in the Agreement.  Such prices will be fixed for the Initial Term (as defined below) of this Agreement. Product prices to Company will increase  by the greater of (i) 5% or (ii) the annualized change in the Consumer Price Index in the calendar quarter preceding any such price change.  Notwithstanding the foregoing, 360 may increase prices to Company, upon notice, for those Products subject to a new or increased regulatory-mandated expense, and such price increase shall not exceed 125% of such new or increased regulatory-mandated expense.

5.4       Purchase of Products.  Products may be purchased by Company and Company Users under this Agreement through the Company LMS Account.   At the end of each calendar month, 360 will calculate the number of Products purchased via the Company LMS Account for the calendar month just ended and issue an invoice to Company for such Products purchased based on the Product prices set forth in the Agreement.  In addition, 360 will include a listing of the Company Users enrolled in each Product during such month. A Product will be deemed purchased at the time a Company User has enrolled in a Course.

5.5       Annual Commitment.  Pursuant to Section 3.4, 360 will invoice Company as warranted for any shortages in achieving the Annual Commitment.

5.6       Payment Terms.

5.6.1       In the event that 360 permits Company to pay after receipt of an invoice, Company will pay all 360 invoices in accordance with the payment terms herein.  In the event that Company has a credit report that is unsatisfactory to 360 or Company’s payment history has been unsatisfactory, both in the sole discretion of 360, 360 may require full payment in advance prior to providing access to the Products or providing any other services.

5.6.2      Company may also remit payment by credit card if so instructed by Company’s credit card authorization form in the Agreement. If Company desires to pay by credit card, then Company will complete 360’s credit card authorization form. Such credit card authorization will be used by 360 to authorize charges for payment of Company’s invoices. In addition, if Company fails to pay any 360 invoices, Company hereby authorizes 360 to charge Company’s credit card for payment of such invoices.

5.7       Past Due Invoices.  If any invoice (or part thereof) is not paid when due, 360 may charge interest that will accrue and be payable at the lesser of the maximum rate permitted under applicable law or 1.5% per month, accrued from the date due until paid in full. If any amount owed by Company under this Agreement or any other agreement between the parties is 30 days or more overdue, 360 may upon written notice to Company and without limiting 360’s other rights and remedies which shall include without limitation to (i) suspend Company and Company Users’ access to and use of the LMS360, the Company LMS Account and Products; and/or (ii) cancel or deactivate the Company LMS Account, until such amounts are paid in full.

5.8       Taxes. All Fees are exclusive of any Taxes. Company is responsible for payment of all applicable value-added, sales, use, license and other transaction-based taxes (such as gross receipts or excise taxes), withholding taxes, and all applicable export and import fees, customs duties, and similar charges (other than taxes based on 360's net income) which are levied or imposed by reason of the transactions contemplated by this Agreement. In the event that any withholding taxes are payable under any applicable law in respect of any payment due to 360 under this Agreement, Company shall gross up such payment such that the balance payable to the 360 after deduction of the applicable withholding taxes shall be equivalent to the original amount due to 360. Provided that in the event any avoidance of double taxation treaty is applicable to such payments, 360 and Company shall cooperate to obtain the full benefit of such treaty.

​​​​​​​5.9       Non-refundability and Other Terms.  Unless otherwise expressly stated herein, all payments and Fees are non-refundable.  Any terms and conditions of any purchase orders or acknowledgements delivered by Company to 360 will not apply. Any such purchase order or similar document from Company will be for billing reference only and, notwithstanding any terms and conditions set forth therein, such document will not modify or add provisions to this Agreement and will not take precedence over this Agreement in any manner. 

6.            TERM AND TERMINATION

​​​​​​​6.1       Term.  The Agreement will commence on the Effective Date and continue in full force and effect, unless earlier terminated in accordance with the express provisions of the Agreement, for period of time specified in the Agreement (“Initial Term”) and thereafter automatically renew for period of time specified in the Agreement (each a “Renewal Term”) without notice unless terminated by written notice by either party at least 60 days before the end of such Initial Term or Renewal Term.  The “Initial Term” and each “Renewal Term” together are referred to herein as the term of the Agreement.

​​​​​​​6.2       Termination.  Each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement, including nonpayment, and fails to cure such breach within 30 days (10 days in the case of non-payment) after written notice thereof. Each party may terminate this Agreement immediately upon delivery of written notice if (i) the other party makes an assignment for the benefit of creditors, (ii) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets, (iii) is declared insolvent or bankrupt, or (iv) ceases operations.

​​​​​​​6.3       Effect of Termination.

​​​​​​​6.3.1       Termination of this Agreement will not extinguish any financial obligations owed by the parties before the date of termination and will not affect either party’s rights or obligations that expressly or by their nature continue and survive.

​​​​​​​ 6.3.2       Upon termination of this Agreement, each party will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party’s reasonable request.  Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party at law or in equity.

​​​​​​​6.3.3       Upon termination of this Agreement, 360 will continue to provide access through the LMS360 to Products purchased by Company and for which a Company User has enrolled on or before the Agreement termination date through the earlier of (i) the date Company User completes the Product; or (ii) the date the Product expires.

​​​​​​​ 6.3.4       Upon termination of this Agreement, except as set forth in Section 6.3.3, Company and Company User access to the LMS360, Company LMS Account and Products will terminate.

​​​​​​​6.4       Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Sections 4 and/or 10 or any other provisions of this Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages.  Accordingly, each party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

​​​​​​​6.5       Survival.  The rights and obligations of the parties contained in Sections 1, 3, 4.2, 4.3, 4.4, 4.5, 5, 6.3, 6.4, 6.5, 7, 8, 9, 10 and 11 of this Agreement, and the Terms of Use (to the extent required to carry out the rights and obligations set forth in this Agreement), and all other terms and conditions which by their nature are intended to survive, will survive the termination of this Agreement.

7. DISCLAIMER. 

THE PRODUCTS, THE LMS360, THE SET-UP SERVICES, THE COMPANY LMS ACCOUNT, AND ALL OTHER MATERIALS AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.  360 DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. 360 DOES NOT WARRANT THAT THE PRODUCTS, THE LMS360, THE SET-UP SERVICES, THE COMPANY LMS ACCOUNT, AND/OR ALL OTHER MATERIALS AND SERVICES PROVIDED BY 360 WILL MEET COMPANY’S OR COMPANY USERS’ NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE PRODUCTS, THE LMS360, THE SET-UP SERVICES, THE COMPANY LMS ACCOUNT, AND ALL OTHER MATERIALS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  TO THE EXTENT WARRANTIES CANNOT BE DISCLAIMED OR EXCLUDED, THEY ARE LIMITED TO THE DURATION OF THE MINIMUM WARRANTY PERIOD REQUIRED BY LAW.

8. LIMITATION OF LIABILITY

​​​​​​​​​​​​​​8.1       EXCLUSION OF DAMAGES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

​​​​​​​8.2       Total Liability.  Except for a party’s obligations under Section 9, a party’s breach of Sections 4 and/or amounts owed by Company to 360 hereunder, to the extent allowed by law in no event will a party’s aggregate liability to the other party, or to any third party, for damages in connection with this Agreement and the services or Products provided pursuant to this Agreement, whether based on breach of contract, tort (including negligence), strict liability, product liability, or other legal or equitable theory, exceed the aggregate Fees (including Fees from Product purchases) actually paid by Company to 360 hereunder during the one year period immediately preceding the date on which the cause of action giving rise to such liability arose. The foregoing applies notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder. Multiple claims will not expand this limitation.

9. INDEMNIFICATION

​​​​​​​9.1       360 Indemnity.  360 will indemnify, defend and hold harmless Company, its employees, directors, officers, consultants, contractors, successors, and assigns from and against any third party Damages finally awarded against Company, or agreed upon by 360 in settlement, to the extent based upon a claim that (i) the Products or LMS360, as provided by 360 and used or accessed by Company in accordance with this Agreement, infringes such third party’s patents, copyright, or trademark; or (ii) the Products do not comply with regulatory requirements. If a claim under this Section is brought or threatened, or 360 believes is likely to occur, 360 may, at its option, (a) procure for Company the right to use the Products or LMS360, or (b) replace the Products or LMS360 with non-infringing items that are functionally equivalent in all material respects, or (c) if options (a) and/or (b) above cannot be accomplished despite 360's commercially reasonable efforts, then 360 may terminate this Agreement with respect to such Products or the LMS360, as applicable, and upon return or cessation of use of the Products or LMS360, as applicable, issue a pro-rata refund or credit to Company for any prepaid Fees corresponding to the remaining Products or term of the Agreement, as applicable, after the date of termination.  360 will have no liability under this Agreement or otherwise to the extent a claim is based upon (1) use of the Products or LMS360 in combination with software, hardware or technology that is not reasonably necessary to use the Products or LMS360 and not provided by or specified by 360, if infringement would have been avoided in the absence of the combination, (2) modifications to the Products or LMS360 not made by or for 360, if infringement would have been avoided by the absence of the modifications, (3) 360’s use of any Company-provided material in accordance with this Agreement, or (4) Company’s use of the Products or LMS360 in violation of this Agreement.

​​​​​​​9.2       Company Indemnity.  Company will indemnify, defend and hold harmless 360, its employees, directors, officers, consultants, contractors, successors, and assigns from and against any third party Damages finally awarded against 360, or agreed upon by Company in settlement, to the extent such is claim based upon Company’s breach of its obligations and covenants specified in this Agreement.

​​​​​​​9.3       Indemnity Process.  The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such matter. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of a claim effected without its prior express written consent (which consent will not be unreasonably withheld or delayed). The indemnifying party will not enter into any settlement of any claim that would constitute an admission of guilt or liability on the part of the indemnified party, without the indemnified party’s prior express written consent (which consent will not be unreasonably withheld or delayed. The indemnified party may engage counsel of its choice at its own expense.

10. CONFIDENTIAL INFORMATION

​​​​​​​10.1       Confidential Information.  Each party acknowledges on its own behalf, that during the term of this Agreement it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) nonpublic information, including, without limitation, business, financial, and technical information reasonably considered by the Disclosing Party to be valuable and proprietary (“Confidential Information”).  Confidential Information also includes the terms and conditions of this Agreement and may  include proprietary or confidential information of third parties that have disclosed such information to the Disclosing Party in the course of its business.  Confidential Information will not include information that the Receiving Party can prove: (i) was previously rightfully in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality; (ii) was developed by or for Receiving Party independently of, and without use of or reference to, Disclosing Party’s Confidential Information; (iii) was received from a third party who is not prohibited from disclosing the information to the Receiving Party by a contractual, legal or fiduciary obligation; or (iv) is or became available to and widely known by the public as to be reasonably regarded as public information without breach of this Agreement by the Receiving Party.

​​​​​​​10.2       Use and Nondisclosure Obligations.  During the term of this Agreement and for three years after its termination, the Receiving Party will: (i) hold the Disclosing Party’s Confidential Information in confidence and use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses for its own Confidential Information of like importance, but in no event using less than a reasonable standard of care; (ii) not divulge any such Confidential Information of the Disclosing Party or any information derived therefrom to any third person except to Receiving Party’s Representatives as authorized hereunder; (iii) not make any use of the Disclosing Party’s Confidential Information except to carry out its rights and obligations under this Agreement; and (iv) not copy the Disclosing Party’s Confidential Information (except as necessary to carry out its rights and obligations under this Agreement).  Any Representative of Receiving Party given access to the Disclosing Party’s Confidential Information must have a legitimate “need to know” and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Disclosing Party’s Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 10. The Receiving Party will be liable for any of its Representatives’ failure to comply with such obligation.  If the Receiving Party suffers any unauthorized disclosure, loss of, or inability to account for Disclosing Party’s Confidential Information, the Receiving Party will promptly notify and cooperate with the Disclosing Party, and take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the damage. “Representatives” means, with respect to a party, such party’s employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.

​​​​​​​10.3       Authorized Disclosures.  The Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body.  To the extent not prohibited by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party to contest such order or requirement or seek confidentiality treatment.  Each party may disclose the terms and conditions of this Agreement: (i) on a confidential basis to legal or financial advisors; (ii) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (iii) on a confidential basis in connection with any financing transaction or due diligence inquiry.

11.         GENERAL PROVISIONS

​​​​​​​11.1       Governing Law and Venue.   This Agreement will be governed and interpreted in accordance with the laws of the state of Texas, exclusive of its choice of law rules, and where applicable, the laws of the United States of America.  Any action brought in connection with this Agreement will be brought exclusively in the county, district, state and federal courts in Austin, Travis County, Texas, and each party hereby consents to personal jurisdiction over it by such courts. No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of such action has arisen.

​​​​​​​11.2       Non-Solicitation.  Neither party will directly or indirectly solicit or encourage any employee to leave the other party’s employment during the term of this Agreement and one year thereafter.  The provisions of this Section will not prohibit employment of a person who has responded to an advertisement in media circulated to the general public, including a posting on a party’s website.

​​​​​​​11.3       Notices.  All notices required or permitted to be given by one party to the other under this Agreement will be in writing and will be deemed to be delivered to the other party: (i) upon the date of receipt, if hand delivered, (ii) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (iii) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery (two-three business days for international addresses), or (iv) upon the date of electronic confirmation of receipt of an email transmission, to the party’s address set forth in this Agreement or to such other address as designated by the receiving party in writing.

​​​​​​​11.4       Assignment.   Company will not have any right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, including without limitation any rights, obligations or benefits under this Agreement without the prior written consent of 360 (and any such attempt will be void), such consent not to be unreasonably withheld.  A change of control of Company will be deemed an assignment for purposes of this Section.  360 may assign or transfer its rights and delegate its obligations under this Agreement, without Company’s consent, in connection with (i) any merger, consolidation, sale of all or substantially all of 360’s assets, business, or capital stock, reorganization, or any similar transaction (whether by merger, operation of law or otherwise); or (ii) the sale, transfer or exchange of a majority interest by its shareholders.  Subject to the foregoing, this Agreement will be bind and inure to the benefit of the parties, their respective successors and permitted assigns.

​​​​​​​11.5       Force Majeure. Except with respect to any payment to be made to 360 hereunder, neither party will be liable for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure, which will include but not be limited to any storm, flood, fire, aircraft damage, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, Government act or administrative delay, equipment failure or non-delivery, inability to obtain materials or any cause or matter whatsoever not within the reasonable control of such party.  In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement.

​​​​​​​11.6       Waiver.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.  Any waiver of any right or provision herein will not be effective unless in writing and signed by authorized representatives of both parties.  The waiver or failure of either party to exercise any right provided herein will not be deemed a waiver of any further right under this Agreement.

​​​​​​​11.7       Severability.  In the event that any provision of this Agreement is determined to be invalid or unenforceable by a body of competent jurisdiction, that provision will be limited or severed only as necessary to eliminate such invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.

​​​​​​​11.8       Relationship.  The parties are independent contractors, and this Agreement is not intended to be nor will it be construed as a joint venture, association, partnership, or other form of a business organization or agency relationship.  Neither party may represent that it has the authority to assume or create an obligation on behalf of the other.

​​​​​​​11.9       Modification of Terms and Conditions. 360 reserves the right, in its discretion, to change, modify, add to, or remove portions of these Terms and Conditions (collectively, “Changes”), at any time. 360 will notify Company of Changes by posting a revised version of these Terms and Conditions incorporating the Changes to 360’s website. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Last Updated” date. Company’s continued purchase, use of or access to the Products following the posting of these Terms and Conditions incorporating the Changes on the 360 website will mean that Company accepts and agrees to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the 360 website.

​​​​​​​11.10       Entire Agreement; Amendments. This Agreement constitutes the entire Agreement and understanding between the parties and supersedes all prior and contemporaneous agreements, written or oral, between 360 and Company with respect to the subject matter hereof. Any such prior agreements are hereby terminated with immediate effect. This Agreement and each of its provisions will be binding upon the parties and, except as otherwise provided in these Terms and Conditions, no addition to or change in the Agreement will be effective or binding on either of the parties unless agreed to in writing by an authorized representative of Company and the CEO, CFO, CMO, VP of Sales or COO of 360. In the event of a conflict between these Terms and Conditions and the terms in the Agreement that reference and incorporate these Terms and Conditions, the terms in the Agreement that reference and incorporate these Terms and Conditions will prevail.

11.11       ​​​​​​​Headings and Captions; Construction; Counterparts. Section headings are used for convenience only and will in no way affect the construction or interpretation of this Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof will not be construed for or against either party.