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Standard Terms of Service for Buyers

See related: Terms of Use | Privacy Policy

The following terms and conditions (“Standard Terms”) shall apply to and be part of the Memorandum of Understanding (“MOU”) between Cureate, LLC and the Buyer identified on the MOU. Capitalized terms that are not defined in this document are defined in the MOU. In the event of any inconsistency between the MOU and these Standard Terms, the MOU shall control. 

Cureate shall provide Buyer at least 60 days’ notice of any change in these Standard Terms, which shall become effective and part of the Agreement between Cureate and Buyer unless Buyer rejects the change in writing or terminates the Agreement.

 


 

1. Legal Compliance

 


 

2. Representations and Warranties  

 


 

3. Vendor Guarantee

 


 

4. Cureate Intellectual Property

Cureate is the sole and exclusive owner of all intellectual property rights in and to the Platform, Cureate Courses, Cureate Pro, Cureate trademarks, service marks, patents, trade secrets, trade names, and all other pre-existing Cureate works and derivative works of such pre-existing works (collectively, the “Cureate IP”). Any developments to the Cureate IP that are made, conceived, created, discovered, invented or reduced to practice during the performance of the Services hereunder are and shall forever remain the sole and absolute property of Cureate. This Agreement does not grant Buyer any license to use any of the Cureate IP.

 


 

5. Confidential Information


 

6. Indemnification

Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all actions, suits, claims, demands, and proceedings (“Claims”) asserted by any third party, and from any resulting losses, liabilities, damages, expenses and costs, including reasonable outside attorney’s fees and court costs, arising from the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s); provided that the Indemnifying Party may not settle any Claim without the other Party’s prior written approval, not to be unreasonably withheld, conditioned, or delayed. If the Indemnifying Party fails to promptly indemnify and defend a covered Claim, the other Party shall have the right to defend itself, and in such case, the Indemnifying Party shall promptly reimburse the indemnified Party for its associated costs and expenses. This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.

This Section 6 states the entire obligation and the exclusive remedies with respect to the Parties’ indemnification obligations hereunder; and it shall survive the termination of this Agreement.
 


 

7. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF (A) WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, (B) WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, AND (C) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. CUREATE’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY THE BUYER TO CUREATE UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATION OF LIABILITY STATED IN THIS SECTION 7 REFLECT A REASONABLE ALLOCATION OF RISK BETWEEN THEM AND ARE A MATERIAL INDUCEMENT TO THE PARTIES ENTERING THIS AGREEMENT.

Notwithstanding anything to the contrary in this Agreement, the foregoing limitations of liability shall not apply to any matter for which it would be illegal to limit a Party’s liability. 

This Section 7 shall survive the termination of the Agreement. 
 


 

8. Termination / Remedies


 

9. Subcontractors

The Parties agree that Cureate may use subcontractors to perform all or a portion of the Services, but Cureate shall remain responsible for the performance of its obligations under this Agreement.  For purposes of this Agreement, “subcontractor” shall mean a person or entity that has a direct contract with Cureate to perform all or a portion of the Services. When used herein, the word “subcontractor” shall include the subcontractor and an authorized representative of the subcontractor.  Each subcontractor shall possess the requisite skills, experience, tools, and personnel to perform its assigned portion of the Services in a professional and timely manner.  Cureate shall enter into appropriate written agreements with each subcontractor.
 


 

10. Non-Circumvention

Buyer will not directly or indirectly solicit or induce any Vendor that Buyer was introduced to by Cureate to end its contractual relationship with Cureate or to sell its Goods or Services to Buyer other than through Cureate.
 


 

11. Relationship of The Parties

The relationship of the Parties is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
 


 

12. Notices

Any notice required or permitted hereunder will be provided in writing via electronic communication to the electronic mail addresses set forth on the MOU (each notice so provided, an “Electronic Notice”). An Electronic Notice will be deemed effective upon the earlier of the time that the Party sending the Electronic Notice receives verification of receipt from the receiving party or one (1) business day after the Electronic Notice is sent.
 


 

13. Force Majeure

Neither Party shall be liable to the other Party hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including the action or inaction of third parties, civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, epidemics, or other occurrences beyond the reasonable control (a “Force Majeure Event”), for so long as such Force Majeure Event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence. Orders and deliveries suspended or not made for more than two weeks by reason of this Section 13 may be canceled by Cureate without liability, but this Agreement shall otherwise remain unaffected.
 


 

14. Governing Law and Venue / Waiver of Jury Trial

This Agreement will be governed by and interpreted in accordance with the laws of the District of Columbia, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in the District of Columbia. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.

WAIVER OF RIGHT TO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE THEIR RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER, WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING.
 


 

15. Attorney’s Fees

If Cureate incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, Cureate shall be entitled to recover its reasonable outside attorney’s fees and any court, arbitration, mediation, or other litigation expenses from Buyer.
 


 

16. Collection Expenses

If Cureate incurs any costs, expenses, or fees, including reasonable outside attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due under this Agreement, Buyer agrees to reimburse Cureate for all such costs, expenses and fees.
 


 

17. Assignment

Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. This Agreement shall be binding upon and inure to the benefit of the successors, permitted assigns and legal representatives of the Parties.
 


 

18. Waiver

No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an Authorized Representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
 


 

19. Severability

If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision or portion will be construed and enforced to the greatest possible extent and the validity of the remaining provisions or portions shall remain in full force and effect.
 


 

20. Headings / Construction

The headings/captions in this Agreement are for purposes of convenience and ready reference, only. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party. The exhibits to this Agreement are incorporated and shall be deemed a part of it as if set forth herein in full. To avoid the unwieldly use of “and/or,” throughout this Agreement, the Parties agree that, where appropriate, use of the word “and” will be read to include use of the word “or” and vice versa.
 


 

21. Survival

Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.

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