This Agreement (the “Agreement”) is entered into by and between Volute Technologies, Inc., a Rhode Island corporation (“Volute”) and the individual or entity now electronically assenting to these terms through account creation or otherwise (“Client”) (each a “Party”, collectively, the “Parties”). This Agreement is made as of the date which Client electronically assents or otherwise enters into the Agreement (the “Effective Date”).

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1. LICENSE AND DESCRIPTION OF SERVICES. Subject to the terms and conditions of this Agreement, Volute grants to Client during the Term, a non-transferable, non-exclusive license, without right to sublicense, to access and use the Volute Platform (the “Platform”) and its web-based tools and components (the “Tools”) made available to the Client, as updated or revised by Volute from time to time. All rights not expressly granted herein are retained by Volute.  The Platform is designed to provide, among other things, a tool that is designed to improve education for working professionals, including, but not limited to, through the use of live, in-person, and on-demand learning events (“Events”).  By electing to participate in an Event, in addition to the other terms herein, you agree: (i) that you, and your picture, likeness, voice, and statements (collectively, your “Likeness”) may be recorded (in audio and/or video formats) while at an Event; (ii) there may be separate and/or additional fees for attending an Event; and (iii) that you will not disclose the contact information of another participant at the Event to a third party unless that participant provides their express written consent to do so.

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2. RESTRICTIONS.

• a. Client shall not use, copy or reverse engineer any element of the Platform or Tools except as expressly permitted herein.

• b. Volute does not guarantee, represent or warrant that access to the Platform will be uninterrupted or error-free, and Volute does not guarantee that Client will be able to access or use all or any of the system features at all times. Volute may suspend the Platform, in whole or in part, at any time.

• c. Neither Client nor its users are permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Platform any information or materials provided or submitted by Client or any of its users in the course of utilizing the Platform (“Client Content”) that: (1) is unlawful or encourages another to engage in anything unlawful; (2) contains a virus or any other similar programs or software which may damage the operation of Volute’s or another’s system; (3) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (4) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Client understands and agrees that Volute reserves the right to edit, modify or remove content being hosted by Volute, for reasons including but not limited to violations of the above standards.

• d. Client and its users may not use the Platform in any way that (i) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or (ii) would be in violation of applicable law or cause damage or harm to Volute or any third-parties.

• e. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Platform. Without limiting the foregoing, Client warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Client shall not use, export or re-export the Platform in violation of any U.S. export embargo, prohibition or restriction.

• f. You may use the Services only if you have reached the age of majority or legal age in your jurisdiction (generally 18 or older) and can form legally binding contracts under applicable law.

• g. You may not direct or encourage another user or individual, through the Service, to do something, go to a place, or participate in an Event that is unsafe, or that a similarly situated, reasonable person wouldn’t have an expectation of safety.

 

3. OWNERSHIP.

• a. Volute retains all right, title and interest in and to the Platform and any and all updates, upgrades or new modules now or hereafter included or made available to Client through the Platform. The owners of the Tools, which may be Volute, Client or third-parties, retain all of their right, title and interest in and to their Tools, and any and all updates, upgrades or new modules now or hereafter included or made available to Client through the Platform. Title to and ownership of any modifications, suggestions, feedback or customizations of the Platform or the Tools shall be held exclusively by Volute, and to the extent necessary, is hereby assigned by Client to Volute. Client agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of Volute set forth in this Section.

• b. All Client Content is and shall remain the property of Client or the applicable third party. Client grants to Volute a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Client Content and Likeness in connection with the Platform.

 

4. CONFIDENTIALITY.

It is anticipated that the Parties may exchange certain proprietary information necessary to carry out obligations set forth hereunder, which may be collected during the use of the Platform, and which may be otherwise discussed between the Parties. In order for each Party to access, use and track the other Party’s proprietary information, the Parties agree as follows:

• a. Definition. “Confidential Information” as used in this Agreement means any and all information disclosed by a Party (each a “Discloser”) to the other Party (each a “Recipient”), provided: (i) if such information is disclosed in tangible form, it is conspicuously marked to identify its confidential or proprietary nature; or (ii) if such information is disclosed orally or by other intangible means, it is identified as confidential at the time of disclosure or is reasonably understood to be confidential given its nature or the circumstances surrounding its disclosure. Notwithstanding the foregoing, as between Volute and Client, the Platform is deemed to be Volute’s Confidential Information. Confidential Information shall not include information that: (i) was generally known or available at the time it was disclosed or has subsequently become generally known or available through no fault of Recipient; (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) is independently developed by Recipient without use of Discloser’s Confidential Information as documented by competent records; or (iv) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence.

• b. Use Limitations; Nondisclosure Obligation; Duty of Care. Each Party agrees as a Recipient: (i) not to use Confidential Information for any purpose except in furtherance of its rights or obligations hereunder; (ii) that it shall disclose Confidential Information only to its employees, advisors, contractors or consultants who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions at least as restrictive as those of this Section; and (iii) to treat all Confidential Information with the same degree of care as it accords its own confidential information of a similar nature, but in no case less than with a reasonable degree of care. A breach of these obligations may result in irreparable and continuing damage to the Discloser for which there may be no adequate remedy at law, and, in the event thereof, Discloser shall be entitled to seek injunctive or other equitable relief as may be appropriate. The foregoing obligations shall continue for a period of three (3) years following expiration of the Term, except as to the obligations concerning the Platform, which shall not expire except in accordance with the exceptions identified in sub-section (a) above.

• c. Required Disclosures. Recipient may disclose Confidential Information as and to the extent required by a valid order of a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either Party under this Agreement.

• d. Data Collection. Client agrees that Volute may, but is not required to, monitor Client’s and its users’ use of the Platform and collect and use data and related information which may be gathered periodically to ensure compliance with this Agreement, to facilitate the provision of updates, product support and other services (if any), and for Volute’s other purposes. Subject to the foregoing use exceptions, other than in aggregate, non-identifiable form, and in a way that does not identify Client as the source, all such data shall be considered Client’s Confidential Information.

 

5. INDEMNIFICATION.

Client will defend, indemnify, and hold Volute (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising from any claim, suit, action, or proceeding arising out of or in connection with:(i) an allegation that Client Content, Client Tools or other data, information or instructions supplied by Client infringes or caused Volute to infringe the intellectual property rights or other rights of a third party or has caused harm to a third party, (ii) Client or its users’ attendance at, or participation in, an Event, or use of the Platform in violation of the law, or (iii) an actual or alleged breach of this Agreement by Client.

 

6. DISCLAIMER; LIMITATION OF LIABILITY.

EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PLATFORM AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND VOLUTE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE RELATING TO LOSS OF USE, INTERRUPTION OF BUSINESS AND/OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY RELATED TO INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED $1,000 IN THE AGGREGATE.  You are solely responsible for any and all of the actions you take, or decisions that you make, relating to or arising from your use of the Service, including, but not limited to attending or participating in any Event.

 

7. TERM AND TERMINATION.

This Agreement shall commence on the Effective Date and remain in force until terminated by Volute at any time (the “Term”). In the event this Agreement is terminated for any reason, all licenses and access to the Platform, and all Events through the Service, shall immediately cease. Sections 2-8 will survive any termination or expiration of this Agreement.

 

8. MISCELLANEOUS.

This Agreement constitutes the Parties’ entire understanding and agreement with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations and understandings between the Parties regarding the subject matter hereof. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the Parties hereto. This Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the Party to be bound. This Agreement shall be governed by the laws of the State of New York without application of its conflicts of laws principles. In any proceeding relating hereto, the Parties agree and hereby submit to the exclusive jurisdiction of the state and federal courts of New York. Client may not assign this Agreement, and any assignments shall be null and void. Volute may assign or transfer this Agreement at any time.