MASTER Subscription AGREEMENT
This Master Subscription Agreement (“MSA“) is incorporated into the Order Form executed between the subscriber as set out in an Order Form (the “Customer“) and CFI Education, Inc (“CFI“). The MSA sets forth the terms and conditions that govern the provision, access, and use of all services, products, websites, and platforms offered by CFI (collectively, the “Services“) and, along with Customer’s Order Form, forms the agreement (the “Agreement“) between Customer and CFI.
PLEASE NOTE THAT IF YOU SIGN UP FOR THE SOFTWARE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, AND (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS MSA.
If you are accepting on behalf of your employer or another entity, you represent and warrant that:
- you have full legal authority to bind your employer or such entity to this MSA;
- you have read and understand this MSA; and
- you agree to this EULA on behalf of the party that you represent. If you do not have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.
“Customer Data” means all data or information submitted by Customer or any of its Permitted Users to the Service.
“Effective Date” has the meaning set out in an Order Form. In the event the Order Form does not indicate an Effective Date, the Effective Date will be the date of execution of such Order Form.
“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 for a subscription to the Services (as may be amended or modified from time to time) between Customer and CFI that incorporates this MSA by reference.
“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.
“Subscription Term” means the period of time, as described in the Order Form, from the Effective Date through the subscription end date.
- Subject to this Agreement and payment of the applicable fees, CFI shall make the Service available to Customer during the Subscription Term for Customer’s internal business use. CFI reserves the right to, at our sole discretion, modify, change, add, remove, or replace the Services, including the features and functionality, at any time with or without notice, provided that no such modification will materially diminish the features or functionality of the Services provided to Customer as of the Effective Date of Customer’s Order Form.
- CFI will use commercially reasonable efforts to make the Services available on a consistent basis, excluding any planned downtime (including for updates and maintenance). While CFI expects planned downtime to be minimal, during any planned downtime, the Services may not be accessible. CFI will provide the Customer with reasonable technical support services as may be necessary to assist the Customer in accessing and using the Services.
- CFI may, at its sole discretion, offer Customer free or discounted temporary subscription to the Services (a “Trial“). All Trials will be subject to this Agreement and any other terms as CFI CFI may cancel or modify the terms of a free Trial at any time, without prior notice and without liability. At the end of the designated Trial period, in order to continue using the Services, Customer will be required to subscribe to the Services at CFI’s then-current Subscription Fees or as mutually agreed upon. NOTWITHSTANDING THAT REDUCED OR NO FEES MAY BE PAYABLE DURING A TRIAL, THE FULL PRICE OF THE FEES THAT WOULD OTHERWISE BE DUE FOR THE APPLICABLE NUMBER OF TRIAL LICENSES WILL BE DEEMED “FEES PAYABLE” FOR THE PURPOSE OF THE LIMITATIONS OF LIABILITY PROVISIONS OF THIS AGREEMENT.
- Suspension of Service. CFI reserves the right to suspend the Services, without notice, for a reasonable period of time as may be necessary for:
- CFI to resolve any actual or threatened risks that, at CFI’s sole discretion, pose a credible risk of harm to the Services or the security or integrity;
- if Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), without liability to Customer, until such amounts are paid in full, and
- for routine maintenance, as required to maintain, update, or improve the Services.
- USER ACCOUNTS
- In order for Customer to access and use the Services, CFI will issue to Customer one or more administrator accounts (the “Administrator Accounts“) to create user accounts (each, a “Customer User Account“) for each user that Customer wishes to have access to and use of the Services (collectively, a “Permitted User“).
- The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the Services through the Customer User Account. Customer will promptly notify CFI of any actual or suspected unauthorized use of the Services. The Customer is responsible for ensuring that all Permitted Users maintain the confidentiality of its passwords and usernames. CFI reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
- If Customer exceeds the usage authorized by the Order Form (for example, by exceeding the number of Permitted Users), then CFI reserves the right to charge and invoice Customer the pro-rata Fees corresponding to such overage and such additional Permitted Users. Customer shall not use the Services in a way intended to avoid incurring fees or exceed usage limits (including allowing multiple persons to use a single Permitted User license).
- Customer will not allow any Permitted User to share their account credentials with any other person. Notwithstanding the foregoing, Customer may be eligible to transfer up to 10% of its Customer User Accounts to a new Permitted User on a one-time basis at CFI’s sole discretion. Once a license is transferred, the Permitted User from whom the license was transferred from may no longer use the Services during the Subscription Term.
- Customer will ensure that all Permitted Users, are contractually bound to CFI’s end user terms and conditions of use, which are available at corporatefinanceinstitute.com/about-cfi/website-terms-of-use/.
- USE OF SERVICE.
- CFI Responsibilities. CFI shall:
- in addition to its confidentiality obligations, 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;
- use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data; and
- provide support to Permitted Users, at no additional charge, in accordance with Section3.
- Customer Responsibilities. Customer is responsible for all activities that occur in Customer User Accounts and for Permitted Users’ compliance with this Agreement. Customer shall:
- have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data;
- 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;
- manage all Permitted Users; and
- comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
- Use Restrictions. Customer shall not (and shall not allow any third party to):
- modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service;
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party;
- circumvent any user limits or other timing or use restrictions that are built into the Service;
- remove any proprietary notices, labels, or marks from the Service
- use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- 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;
- use the Service to send or store Malicious Code;
- frame or mirror any content forming part of the Service;
- interfere with or disrupt the integrity or performance of the Service or the data contained, or attempt to gain unauthorized access to the Service or its related systems or networks; or
- 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.
- Publicity. Each party may, with the other party’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 Responsibilities. CFI shall:
- FEES & PAYMENT.
- 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 its terms and conditions.
- 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.
- 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 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.
- 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.
- PROPRIETARY RIGHTS.
- Reservation of Rights and Ownership. Subject to the limited rights expressly granted, CFI reserves all rights, title and interest in and to the Service including, without limitation, all related intellectual property rights. No rights are granted to Customer other than as expressly set forth in this Agreement.
- Feedback. 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.
- Confidential Information. “Confidential Information” means all non-public knowledge or 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, proprietary 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, the Customer Data, the Services, business and marketing plans, technology and technical information, product designs, and business processes.
- Exclusions. Confidential Information shall not include any information that:
- is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
- was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
- was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or
- is received from a third party without breach of any obligation owed to the Disclosing Party.
- Non-Disclosure. 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. 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.
- 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). The Receiving Party will promptly advise the Disclosing Party if the Receiving Party learns of any unauthorized use or disclosure of any Confidential Information.
- Return and Destruction. At the Disclosing Party’s written request, the Receiving Party will, to the extent reasonably possible, return, delete, or destroy (as requested) the Disclosing Party’s Confidential Information in its possession, except if and to the extent the Receiving Party is required by applicable law to retain any specific Confidential Information. Notwithstanding the foregoing, CFI may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
- 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.
- Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. CFI represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to such provision.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. 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.
- 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) in any third party actions, lawsuits, or proceedings made or brought against Customer: (a) alleging that the use of the Service as contemplated infringes on such third party’s intellectual property rights (“IP Claims“); or (b) arising from CFI’s gross negligence, willful misconduct, or fraud.
- 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:
- procure for Customer the right to continue to use the Service;
- replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or
- if (x) or (y) 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 monies owed by Customer to CFI.
- Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to:
- 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;
- any IP Claim related to any Customer Data; or
- 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.
- 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: (i) in respect of Customer’s negligence, wilful misconduct, or fraud; (ii) in relation to any breach of Section 3.3 (Use Restrictions); or (iii) against CFI by a third party alleging that the Customer Data, or Customer’s use of the Service except as expressly permitted by this Agreement, infringes on the intellectual property rights or has otherwise harmed such third party.
- Indemnification Procedures. The party seeking indemnity or defense (“Indemnified Party“) will provide written notice to the party from which indemnity is sought (“Indemnifying Party“) of the existence of any event giving rise to an indemnification obligation (a “Claim“) promptly after becoming aware of the Claim; provided, however, that the Indemnified Party’s failure to give timely notice of such Claim will not relieve the Indemnifying Party of its indemnification obligations unless such failure actually prejudiced the Indemnifying Party. At the Indemnifying Party’s sole expense, the Indemnifying Party will be entitled to assume and control the defense of the Claim and the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the. Claim. The Indemnifying Party will have the right to settle such Claim at its sole discretion, provided that, without the Indemnified Party’s prior written consent (not to be unreasonably withheld or delayed), the settlement is purely monetary, does not require the Indemnified Party to make a monetary payment, and provides an unconditional release of the Indemnified Party with respect to such Claim.
- LIMITATION OF LIABILITY.
- Limitation of Liability Amount. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, 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; OR (II) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
- Exclusion of Consequential and Related Damages. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, 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.
- 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“). Unless otherwise specified in an applicable Order Form, this Agreement 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” of this Agreement.
- 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 and 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 and is unable to continue performance of their respective Responsibilities. 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.
- 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.
- Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 3 through 1
- GENERAL PROVISIONS.
- 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.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- 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.
- 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.
- 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.
- 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, either 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.
- 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 in this Agreement, 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
- 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 consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- 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.
- 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.
- Amendments. As between CFI and Customer, any modification to this MSA requires the written mutual agreement between the Parties. Notwithstanding the preceding sentence, CFI may unilaterally amend the online version of the MSA, 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 the Services. 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 the Services (whichever is earlier). Customer’s continued use of the Services after such Amendment is acknowledgment of and agreement with such Amendment.
- 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 this MSA and any Order Form, the terms such Order Form shall prevail. Notwithstanding any language to the contrary in the Agreement, 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.