Services Agreement

This Master Services Agreement is between Ziiva Inc., a Virginia Corporation ("Ziiva") and the person (individual or legal person) whose name appears above the signature line of this Master Services Agreement or who signs any document that incorporates the Agreement by reference ("Client") and is effective on the Effective Date.

1. DEFINITIONS.

1.1 “ASP Services” means making the System available to Client over the Internet and technical support and maintenance therefore as described and in accordance with the Agreement and the Services and Fees Schedule.

1.2 “Attachment(s)” means individually and collectively this Master Services Agreement, the Cover Page preceding these General Terms and Conditions, the Services and Fees Schedule attached hereto, and any additional Statements of Work entered into by the parties and attached hereto.

1.3 “Client Data” means Client’s course content, developed course media, tests and all other course related data, information and materials provided by or on Client's behalf to Ziiva hereunder.

1.4 “Cover Page” means the page preceding these General Terms and Conditions which sets forth the parties to and term of the Agreement.

1.5 “Documentation” means the materials provided to Client by Ziiva in connection with or relating to the System.

1.6 “Intellectual Property” means all rights to patents, copyrights, trade secrets and all other proprietary and intellectual property rights.

1.7 “Party” or “party” shall mean either Ziiva or Client, and “Parties” or “parties” shall mean Ziiva and Client, collectively.

1.8 "Service(s)" means any and all services provided to Client under the Agreement.

1.9 “Services and Fees Schedule” means the Services and Fees Schedule attached hereto.

1.10 "Statement of Work" means a written document of the same title in the form of the Statement of Work attached hereto signed by the parties and attached to the Agreement, which describes services contracted for by Client and additional terms and conditions applicable thereto.

1.11 “System” means Ziiva’s proprietary Prosperity™ Learning Management System, including all programming code and database schema.

1.12 “User(s)” means any person authorized by Client to access and use the System as permitted under the Agreement.

2. PROSPERITY LMS.

2.1 Ownership. Client acknowledges Ziiva owns all right, title and interests in and to the System and Documentation, any part thereof, and all Intellectual Property therein. Ziiva acknowledges Client owns all right, title and interests in and to Client Data, any part thereof, and all Intellectual Property therein.

2.2 License. Subject to the terms and conditions herein, during the term of the Agreement, Ziiva grants Client a limited, nontransferable, nonexclusive license to access and use the System and Documentation solely in accordance with the terms hereof. Client grants Ziiva a limited license to access and use Client Data in connection with the Agreement, including to provide, maintain and deliver the System and Services and for billing purposes. Ziiva may at any time download database files containing Client Data for maintenance, backup purposes and for billing purposes. During the term of the Agreement, Client is free to download Client Data residing in the System via the queries tool at any time for Client’s own use.

2.3 Scope. Client’s right to access and use the System is limited by the scope of use and other restrictions set forth in the Agreement. Except as expressly permitted herein, Client shall not sell, rent, lease, distribute, license or sublicense its right to access and use the System, or otherwise use the System to provide timeshare, service bureau, application service provider or similar services to any other third party or provide access to or use of the System to any third party. Subject to payment of Ziiva’s fees pursuant to the Services and Fees Schedule, Client may use the System (a) to administer the training of Client’s employees, vendors and customers and (b) in the event Client is a learning services provider, to assist with the delivery of learning services to Client’s customers. Client may grant limited administrative rights to persons performing such functions in their organization or their vendors’ or customers’ organizations, including, for example, to (i) a person performing administrator functions in the event the Client is a learning services provider, (ii) an instructor to manage a student roster; (iii) a content developer engaged to create content to be loaded into the System and (iv) a third party administrator, such as a web developer. Client shall ensure all persons that Client permits or authorizes to access the System comply with all terms and conditions herein. Client shall not permit any person to access or use the System in violation of the laws and regulations of the United States. Client shall not and shall not permit any person to reverse engineer, decompile, modify or create derivative works from the System, or seek to interface or connect the System with any other computer software or system without prior written approval of Ziiva. Upon reasonable prior notice, Client shall permit Ziiva to inspect the locations and equipment from which the System is accessed or used by Client, as well as all applicable records, to confirm Client's compliance with the terms of the Agreement. Client shall not modify any portions of the System that have displays of, contain references to, or otherwise identify by name the System, the ownership of the System, or Ziiva. ZIIVA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE PERFORMANCE OF THE SYSTEM IN THE EVENT THAT THE SYSTEM IS NOT USED IN ACCORDANCE WITH THE AGREEMENT OR ANY INSTRUCTIONS FOR USE PROVIDED BY ZIIVA OR IS MODIFIED OR INTERFACED WITH OTHER SOFTWARE OR DATA BY CLIENT OR ITS AGENTS, CONTRACTORS OR CUSTOMERS WITHOUT ZIIVA’S PRIOR WRITTEN CONSENT. Ziiva shall own all modifications to the System, including all Intellectual Property therein, and Client shall execute all documents and undertake all reasonable actions as Ziiva requests in order to vest ownership of such intellectual property rights in Ziiva.

3. PROFESSIONAL SERVICES.

3.1 Setup Services. Ziiva will provide Client the setup services subject to the terms hereof and the Services and Fees Schedule attached hereto. Client shall pay Ziiva the fees set forth in the Services and Fees Schedule in accordance with the terms thereof and the Agreement.

3.2 Additional Services. Subject to availability, Ziiva will provide Client consulting and other professional services subject to the terms hereof and as set forth in written Statements of Work signed by both parties. All such Statements of Work shall be in the form attached hereto. Unless otherwise agreed to in writing, all services shall be provided at Ziiva's then prevailing rates plus costs, which shall include the cost of media, travel, food and lodging. Client shall pay Ziiva the fees set forth in any Statement of Work in accordance with the terms thereof and the Agreement. Ziiva shall determine in its sole discretion the method, details and means of performing the services. Ziiva reserves the right to perform any and all services for other clients of Ziiva.

3.3 Client Obligations. Client shall perform its obligations set forth herein and in any Statement of Work entered into by the parties as a condition of Ziiva's performance of its obligations hereunder and under such Statements of Work. Client shall comply in a timely manner with all reasonable requests of Ziiva for assistance in enabling Ziiva to fulfill any of Ziiva's obligations under any Statement of Work. Client agrees that if any delays in Ziiva’s performance under a Statement of Work, including its failure to meet any deadlines, occur as a result of failure or untimely performance by Client, all deadlines applicable to Ziiva shall be extended by the number of days of delay caused by Client’s failure or untimely performance.

3.4 Statements of Work; Modifications. Client acknowledges that Client has reviewed each Statement of Work and that each Statement of Work accurately reflects the services requested by Client to be performed by Ziiva. To be binding on the parties, any modification to a Statement of Work must be in writing and be signed by Client and Ziiva.

3.5 Acceptance. Services provided to Client pursuant to a Statement of Work shall be deemed accepted by Client upon the expiration of thirty (30) days after delivery or performance of such services unless Client provides Ziiva written notice of rejection of the services specifying the grounds for such rejection in reasonable detail within such thirty (30) day period.

4. IT SERVICES.

4.1 ASP Services. Ziiva will provide Client the ASP Services in accordance with and subject to the terms hereof and the Services and Fees Schedule attached hereto. Client acknowledges that the software comprising the System will be installed and operated on equipment owned by or operated on behalf of Ziiva or its third party hosting providers at location(s) of Ziiva’s choosing and that access to the System will be provided to Client remotely through the Internet. Client shall pay Ziiva the fees set forth in the Services and Fees Schedule in accordance with the terms thereof and the Agreement.

4.2 Scope. The ASP Services do not include custom programming services, travel or on-site support, training or equipment support. Such additional services, subject to availability, may be provided by Ziiva to Client pursuant to mutually acceptable Statements of Work signed by the parties and attached hereto and at Ziiva's then prevailing rates plus costs, which shall include the cost of media, travel, food and lodging.

4.3 Client Obligations. Client shall designate a single contact person trained in the use of the System to communicate with Ziiva in connection with the System, ASP Services and any support issues, and to the maximum extent possible Client's communications with Ziiva regarding the System will be through the contact person. Client shall promptly provide all information requested by Ziiva in connection with the resolution of any issues in connection with the ASP Services and System. Client is solely responsible for procuring and maintaining, at Client’s sole expense, all hardware, software and telecommunications necessary to meet Ziiva's minimum requirements to access and use the ASP Services and System as such requirements are provided to Client from time to time. Ziiva shall not be liable for any deficiency or failure of the ASP Services or System due to Client’s failure to meet Ziiva's minimum requirements or other Client responsibilities hereunder.

4.4 User Entered Data. Client shall be solely responsible for the accuracy and completeness of the Client Data and all data entered into the System by Users. Ziiva shall not be responsible for any errors or inaccuracies in and with respect to such data.

4.5 Access Security. Client shall keep, and shall ensure all Users keep, all login IDs, passwords and other access codes pertaining to the System confidential and secure from all unauthorized persons. Client will immediately terminate the relevant access rights of any User who ceases to act in that capacity on behalf of Client, or who improperly uses or misuses the System. Client will immediately terminate the ability of any User to use a particular password or access code in the event of loss, theft, or unauthorized disclosure or other misuse of that login ID, password or other access code. Client shall indemnify, defend and hold Ziiva, its directors, officers, employees, contractors and agents harmless from and against all claims, proceedings, actions, damages, losses and costs, including reasonable attorneys’ fees, resulting from, arising out of or connected with any failure by Client or any User to keep logins, passwords and other access codes confidential and secure as required.

4.6 Security Breaches. In the event of any security breach with respect to the System, Client shall immediately notify Ziiva and Ziiva will be entitled to take measures to protect the System and other systems of Ziiva and/or its suppliers that could be affected as a result of the security breach and Ziiva shall not be liable for any breach or failure to perform hereunder due to such security breach and protective actions.

5. PAYMENTS.

5.1 Fees and Costs. Except as otherwise set forth in the Services and Fees Schedule or any Statement of Work entered into by the parties, Ziiva shall invoice Client for all fees associated with the Services provided under the Agreement and all costs incurred in connection with providing the Services to Client, including document reproduction costs, travel expenses and costs of media, which invoices shall be due and payable by Client within thirty (30) days of the invoice date.

5.2 Taxes. Client shall pay all present or future sales, excise, import, use, valueadded or other similar taxes or duties (not including taxes or duties on the income of Ziiva) levied or based on payments made to Ziiva pursuant to the Agreement.

5.3 Unpaid Amounts. Client shall pay Ziiva a late charge of one and one-half percent (1½%) per month or the maximum rate allowed by law, whichever is greater, on all amounts not paid to Ziiva by Client when due. Ziiva shall have the right to suspend the Services without further notice in the event Client fails to pay any amount when due. In the event Ziiva initiates collection activities in connection with any past due amount owed by Client hereunder, Client agrees to pay all of Ziiva's costs and expenses incurred in connection therewith, including Ziiva's reasonable attorneys' fees. Client shall pay to Ziiva all amounts owed by Client to Ziiva under the Agreement and shall not set-off, counterclaim, exercise any right of recoupment or otherwise withhold any other amount owed to Ziiva on account of any obligation owed by Ziiva to Client.

6. TERM AND TERMINATION.

6.1 Term. The Agreement shall begin on the Effective Date and remain in full force and effect unless and until terminated in accordance with Section 6 hereof.

6.2 Termination by Client. Client may terminate the Agreement at any time with or without cause effective thirty (30) days after delivery of written notice of termination to Ziiva. Client will forfeit any unused professional service hours, hosting and maintenance costs, and student seat licenses.

6.3 Termination by Ziiva. Ziiva may terminate the Agreement at any time with or without cause effective thirty (30) days after delivery of written notice of termination to Client; provided, however, that in the event Ziiva terminates the Agreement without cause and Client has prepaid Ziiva’s services fees, Ziiva shall, at Ziiva’s option, either (i) refund to Client the unused amount of such prepaid fees on a prorated basis or (ii) extend the effective date of termination of the Agreement until the prepaid services have been provided to the Client. Ziiva may also terminate the Agreement effective immediately upon delivery of written notice of termination to Client in the event that Client fails to pay any amount when due within five (5) days following Ziiva’s delivery of written notice to Client of such nonpayment.

6.4 Termination of Statements of Work. Each Statement of Work shall terminate (i) upon termination of the Agreement, (ii) upon Client’s acceptance of the services to be performed thereunder or (iii) as otherwise set forth in the applicable Statement of Work, whichever occurs first.

6.5 Software and Confidential Information. Upon termination of the Agreement for any reason, (i) Client shall cease using the System, destroy or return to Ziiva the applicable Documentation and all copies thereof in its possession or control, (ii) Client shall destroy or return to Ziiva the Confidential Information of Ziiva and all copies thereof in its possession or control, and Ziiva shall destroy or return to Client the Confidential Information of Client and all copies thereof in its possession or control. These requirements apply to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials.

6.6 Effect of Termination. Termination or expiration of the Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination or expiration relieve Client of the obligation to pay all fees that have accrued or are otherwise owed by Client under the Agreement or any Statement of Work. The parties' rights and obligations under Sections 1 and 5, 6, 7, 8, 9 and 10 shall survive the expiration or termination of the Agreement.

7. CONFIDENTIALITY.

7.1 Confidentiality of Agreement and System. Client shall maintain the strict confidentiality of the terms of the Agreement, the System (including the content and design of the System and all software code), the Documentation, all Ziiva trade secrets, and all information regarding any proprietary information, method or process of Ziiva (together, the “Restricted Ziiva Materials”). Client shall not use, sell, transfer, publish, disclose, display or otherwise make the Restricted Ziiva Materials available to others, except as expressly permitted under the Agreement.

7.2 Other Confidential Information. The parties acknowledge that during the term of the Agreement a party may disclose (“Discloser”) to the other certain valuable and confidential information regarding the Discloser’s financial condition, suppliers, customers, business plans, data and other information not generally known to the public which provides a competitive advantage to the Discloser, including the terms of the Agreement ("Confidential Information"). The party (“Recipient”) that receives Confidential Information of the Discloser shall not disclose or divulge the Confidential Information to third parties, other than consultants, agents or independent contractors of the Recipient that are bound by confidentiality obligations comparable to those set forth herein, and shall limit use of the Confidential Information to use necessary in the performance of the Recipient’s obligations under the Agreement. The obligation to maintain the confidentiality of Confidential Information hereunder, other than that portion of Confidential Information that constitutes trade secrets under applicable law, shall continue in full force and effect during the term of the Agreement and for a period of three (3) years after termination of the Agreement; however, the Recipient shall maintain the confidentiality of that portion of Confidential Information that constitutes trade secrets under applicable law for so long as such Confidential Information constitutes trade secrets under applicable law. Notwithstanding the foregoing, the Recipient shall not be required to maintain the confidentiality of information that: (i) the Recipient can demonstrate with documentary evidence was in the Recipient's possession prior to disclosure by the Discloser, so long as such information is not otherwise subject to an obligation of confidentiality; (ii) the Recipient can demonstrate with documentary evidence became generally available to the public other than as a result of a disclosure by the Recipient; or (iii) the Recipient can demonstrate with documentary evidence became available to it on a non-confidential basis from a source other than the Discloser. If the Recipient is required to disclose the Discloser’s Confidential Information by a lawful court order, subpoena, or similar legal request, the Recipient shall (if legally permitted) promptly notify the Discloser in writing of such requirement to permit the Discloser to seek an appropriate protective order.

WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY.

8.1 System. Ziiva represents and warrants to Client that Ziiva has the requisite power and authority to enter into and perform the Agreement.

8.2 Client Data. Client represents and warrants to Ziiva that Client: (a) has the requisite power and authority to enter into and perform the Agreement; and (b) Client owns or possesses sufficient rights to (i) provide Ziiva the Client Data and (ii) to permit Ziiva to use the Client Data for the purposes contemplated by the Agreement. In the event Ziiva’s receives notice of any claim or allegation that the Client Data or the use of Client Data for the purposes contemplated hereunder has not been authorized, that the Client Data violates or infringes a third party’s rights or is in violation of any law, rule or regulation, Ziiva shall have the right to immediately remove such data from the System until such claim or allegation has been resolved to Ziiva’s reasonable satisfaction.

8.3 Information Conduit. The System presents Client Data and other information and Ziiva makes no representations or warranties regarding the accuracy, timeliness, or completeness of such data and information.

8.4 Warranty Disclaimer. OTHER THAN THE REPRESENTATION AND WARRANTY EXPRESSLY SET FORTH IN SECTION 8.1, THE SYSTEM AND SERVICES ARE PROVIDED AS-IS, AND ZIIVA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SYSTEM AND SERVICES AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING.

8.5 Limitation of Liability. IN NO EVENT SHALL ZIIVA BE LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGE TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS) HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, ARISING FROM OR RELATING TO THE AGREEMENT OR ANY BREACH HEREOF, EVEN IF ZIIVA HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. ZIIVA’S LIABILITY TO CLIENT UNDER ANY THEORY OR CIRCUMSTANCE SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO ZIIVA UNDER THE AGREEMENT FOR THE APPLICABLE SERVICE TO WHICH THE CLAIM RELATES FOR THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9. INDEMNIFICATION.

9.1 Infringement Indemnity. Ziiva will defend and settle at its own expense, and will indemnify Client against any damages awarded against Client resulting from any action brought against the Client to the extent that it is based on a claim that the System (excluding all Client Data and Client requested modifications) infringes any U.S. patent issued as of the Effective Date, infringes any copyright of a third party or misappropriates any trade secret of a third party (“Infringement Claim”); provided that: (i) Client promptly notifies Ziiva in writing of the claim; (ii) Client grants Ziiva sole control of the defense and any negotiations for its settlement; and (iii) Client provides Ziiva with all reasonable assistance, information, and authority necessary to perform the above.

9.2 Infringement Remedy. Should all or any part of the System (excluding any Client Data and Client requested modifications) become, or in Ziiva’s opinion be likely to become, the subject of any such claim of infringement, then Client will permit Ziiva, at Ziiva's option, either: (i) to procure for Client the right to continue using the System or affected part thereof; (ii) replace or modify the System or affected part thereof so that its use becomes non-infringing, without materially impairing the System or affected part thereof; or (iii) in the event options (i) or (ii) are not reasonably practicable or commercially reasonable, terminate the Agreement or Client’s use of the allegedly infringing part of the System. Sections 9.1 and 9.2 set forth Client’s sole remedy under the Agreement for any Infringement Claim.

9.3 Exceptions. Ziiva’s obligations set forth in Sections 9.1 and 9.2 shall not apply with respect to a claim which arises from any of the following (each an “Excluded Claim”): (i) the use of the System and Services in a manner other than as permitted under the Agreement; (ii) use of the System or Services in a manner other than as designed or intended; (iii) any unauthorized modification of the System (iv) the use, operation, or combination of the System or Services with software, data, equipment, or materials not provided by Ziiva; (v) Client's continuance of allegedly infringing activity after being informed of the infringement and provided with modifications that would avoid the alleged infringement; or (vi) materials, data, information, directions or specifications provided by or on behalf of Client to Ziiva, including Client Data.

9.4 Client Indemnity. Excluding claims for which Ziiva is obligated to indemnify Client under Section 9.1, Client will defend and settle at its own expense, and will indemnify Ziiva for any damages or expenses (including reasonable attorneys' fees) resulting from, any claim brought against Ziiva arising from or relating to Client Data and/or Client's or Client’s customers’ access, use or resale of the System or Services, including any Excluded Claim.

10. GENERAL.

10.1 Relationship of Parties. The relationship of the parties established by the Agreement is solely that of independent contractors. Neither party nor its agents or employees is the representative of the other for any purpose, and neither has power or authority to act as agent of, or to represent, act for, bind, or otherwise create or assume, any obligation on behalf of the other.

10.2 Employee Solicitation. During the term of the Agreement and for one (1) year thereafter Client shall not, directly or indirectly through agents, employees, representatives or other persons or entities, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, or attempt to do any of the foregoing, with respect to any employee or contractor of Ziiva.

10.3 Export Administration. Client agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that the System is not (1) accessed or used, directly or indirectly, in violation of Export Laws; or (2) used in any manner or for any purposes prohibited by the Export Laws.

10.4 Governing Law. The Agreement shall be governed by, construed and enforced under the laws of the Commonwealth of Virginia, excluding its laws regarding conflicts of law. Notwithstanding the foregoing, the parties agree that the Uniform Computer Information Transactions Act (“UCITA”), shall not apply to this Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to this Agreement. Any action of any kind arising out of or in any way connection with this Agreement, other than collection of outstanding payment obligations, must be commenced within one (1) year of the date upon which the cause of action accrued.

10.5 Dispute Resolution. Any dispute between the parties hereunder shall be resolved as specified in this Section 10.5:

(a) Upon the delivery of a written request by either party to the other party (the “Notice”), a dispute shall be submitted to officers designated by each party at the vice president level or higher (“Designated Officers”) for their review and resolution within forty-five (45) days after the receipt of the Notice. The Designated Officers shall discuss the dispute and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding relating thereto. The specific format and process for such negotiations will be as mutually agreed to by the Designated Officers.

(b) If the dispute is not resolved by the Designated Officers within forty-five (45) days after the receipt of the Notice, either party may seek resolution of the dispute in court. Each of the parties hereto hereby agrees that all actions, suits or other proceedings arising out of or relating in any way to the Agreement shall be brought only in state or federal courts in the Commonwealth of Virginia. Each of the parties hereto hereby knowingly, voluntarily, intelligently, absolutely and irrevocably waives and agrees not to assert any objection it may now or hereafter have to the laying of venue of all actions, suits or proceedings arising out of or relating in any way to the Agreement in state or federal courts in the Commonwealth of Virginia and irrevocably submits to the jurisdiction of such courts for such purposes. Each of the parties hereto hereby knowingly, voluntarily, intelligently, absolutely and irrevocably waives and agrees not to assert in any such action, suit or proceeding that he, she or it, as the case may be, is not subject to the personal jurisdiction of such courts or that the action, suit or proceeding should be transferred to a different venue under forum non conveniens principles or statutes embodying such principles.

(c) With the exception of applications to courts of competent jurisdiction for injunctive or other equitable relief or actions brought to collect outstanding payment obligations, the parties stipulate that the submission of disputes to the procedures provided in this Section 10.5 shall be a condition precedent to any suit, action or proceeding instituted in any court or with respect to such dispute.

(d) Waiver of Jury Trial. EACH PARTY AGREES TO WAIVE AND HEREBY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ACTION, SUIT, PROCEEDING, DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE AGREEMENT, THE SYSTEM OR SERVICES.

10.6 Binding Nature and Assignment. Client shall not, directly or indirectly, by assignment or change of control or otherwise, assign or transfer the Agreement or any of its rights or obligations hereunder without the prior written consent of Ziiva. The Agreement shall be binding upon and inure to the benefit of the parties hereto and (i) with respect to Client, its permitted successors and assigns, and (ii) with respect to Ziiva, its successors and assigns.

10.7 Notices. Any notice, consent or other communication in connection with the Agreement shall be in writing and may be delivered in person, by certified mail (return receipt requested) or by facsimile with confirmation copy by first class mail, to the parties at the addresses set forth on the Cover Page of the Agreement. Notice shall be effective upon receipt. Each party may change its address for notification purposes by giving the other party written notice of the new address and the date upon which it shall become effective.

10.8 Publicity. Ziiva may prepare, circulate and publish press releases concerning the existence of the Agreement and may reference Client and the Agreement in its advertising, sales promotions, trade shows, or other marketing materials with written approval by Client.

10.9 Force Majeure. Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay any amount when due) if such failure arises out of causes beyond such party’s reasonable control. Any party experiencing such an event shall give as prompt notice as possible to the other party under the circumstances.

10.10 Waiver. No delay or omission by either party to exercise any right or power it has under the Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the party waiving its rights.

10.11 No Third Party Beneficiaries. The parties agree that the Agreement is for the benefit of the parties hereto and is not intended to confer any legal rights or benefits on any third party and that there are no third party beneficiaries to the Agreement.

10.12 Residual Knowledge. Nothing herein shall be construed to prevent or in any way limit Ziiva from using general knowledge, skill and expertise acquired in the performance of the Agreement in any current or subsequent engagement or business. Client shall have no interest in such engagements or business.

10.13 Subcontractors. Ziiva shall have the right to subcontract the performance of its obligations hereunder; however, Ziiva shall remain ultimately responsible for the performance of its obligations hereunder notwithstanding any subcontract.

10.14 Rules of Construction. Interpretation of the Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) references to the terms Section, Attachment, Cover Page, Services and Fees Schedule and Statement of Work are references to the Sections of these General Terms and Conditions and the Attachments, Cover Page, Services and Fees Schedule and Statements of Work comprising the Agreement unless otherwise specified, (c) the word “including” and words of similar import shall mean “including, without limitation,” (d) provisions shall apply, when appropriate, to successive events and transactions, (e) the headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement and (f) the Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. In the event of any conflict between the General Terms and Conditions and any Attachment, the General Terms and Conditions shall prevail unless the Attachment containing such conflicting provision specifically references the provision of the General Terms and Conditions to be superseded and sets forth the parties’ intent to supersede such provision of the General Terms and Conditions with the conflicting provision of the Attachment, and such Attachment is signed by both parties.

10.15 Entire Agreement. These General Terms and Conditions and all Attachments, each of which is hereby incorporated into the Agreement by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and all prior representations, understandings or agreements between the parties relating to such subject matter are merged herewith. No modification of the Agreement shall be valid unless in writing and signed by any authorized representative of the party against which such modification is sought to be enforced.

10.16 Counterparts. The Agreement (including any Attachment) may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

THIRD-PARTY COURSEWARE LICENSE ADDENDUM

This only applies for optional purchases of third-party training content.