These Organization Terms of Service (“Organization Terms”) describe and govern the relationship between the Organization (defined below) and Retainer Learning LLC, a Utah limited liability company d/b/a Retainer Learning (“RL”). If you are a User, the https://www.retainerlearning.com/user-terms-and-conditions : User Terms of Use describe and govern your use of and access to the Services. You also agree to the RL https://www.retainerlearning.com/privacy-policy : privacy policy (“Privacy Policy“), which covers how RL collects, uses, shares, and stores certain information and related matters.  The Privacy Policy is incorporated into this Agreement by reference. These Organization Terms (or, if applicable, Organization’s written agreement with RL), the User Terms of Use (which are incorporated herein by reference), the Privacy Policy, and any invoices (which are incorporated herein by reference) together form a binding agreement (the “Agreement”) between Organization and RL. If any terms in Section 13 apply to Organization, those terms are also incorporated herein by reference and are part of the Agreement.  

When RL updates the Services or the way the Services work, it may also update the Organization Terms and your Agreement. If that happens, RL will post an updated version of the Organization Terms and notify Organization via the Organization Admin’s e-mail address on file; the update will be effective as of the date that RL identifies as the effective date in such email.

1. Definitions.

1.1 An “Account” is an RL account established by an Organization.

1.2 An “Authorized User” is the Organization and any User associated with such Organization (e.g., Organization student, staff, employee, officer, etc.) that has been granted access to or use of an Account, Services or Package associated with the related Organization by Organization Admin. Notwithstanding anything in the Agreement to the contrary, RL may in its sole and absolute discretion determine whether or not a User is classified as an Authorized User or an unauthorized User, and if RL determines that any unauthorized User is accessing or using the Services or Package, RL may prevent such User from accessing or using the Services or Package and may assert that Organization is in breach of these Organization Terms.

1.3 “Installed Software” means those elements of the Services and RL’s platform related to the Services intended for installation on personal computers and mobile devices.

1.4 “Intellectual Property Rights” means any rights under any patent (including patent applications and disclosures), copyright, trademark, trade secret, or other intellectual property right recognized in any country or jurisdiction in the world.

1.5 An “Organization” is the Person that is an organization that is represented when establishing an Account or provides rights to an Account, and enters into an Agreement with RL. An Organization could be, for example, a school, a university, or other public or private organization.

1.6 An Organization must designate at least one individual as the administrator for its Account (an “Organization Admin”). An Organization may designate additional Organization Admins, each of which shall have authority described in this paragraph. The Organization Admin has authority to make changes to the Organization’s Account, to provide and revoke access of the Organization’s Packages and Services to and from Authorized Users and to take any other actions and obtain any other information related to the Organization permitted by the Agreement; provided, however, in no event may any Services or Packages revoked from an Authorized User be reassigned to a different Authorized User. The Organization is responsible for the actions of its Authorized Users and to update the Organization Admins associated with its account.

1.7 A “Package” is a purchased license included in an Organization’s Account that may be granted by an Organization from its Account to Authorized Users to access and use the Services described in the related invoice and such license in accordance with this Agreement, the User Terms of Use, and Privacy Policy, which may be renewable per the terms of the Agreement. 

1.8 A “Person” means any individual, corporation, partnership, company, trust, organization, institution, school, or other entity, including but not limited to the Organization and Organization Admin.

1.9  A “User” is any Person accessing or using any Services.

1.10  “User Submission” means any and all content submitted, uploaded or provided by Organization, its Authorized Users, or Users accessing or using Organization’s Packages or Services, to the Services or RL’s platform related to the Services, including but not limited to, actual, mock, artificial or simulated case studies, research, writings, instructions, syllabus, criteria, procedures, voices, performances, poses, acts, plays, appearances, videos, pictures, images, likeness, photographs, silhouettes, information, data, audio, files and other reproductions of the physical likeness and sound of those appearing in the content.

1.11 “Vital Information” means physical characteristics (e.g., height and weight) and contact information concerning any Authorized User, as inputted by Organization or Authorized User into the Services or RL’s platform related to the Services or as otherwise publicly available.

2. Payment.

2.1 Invoices. When an Organization first gains access to its Account, RL provides an invoice to the Organization for the Services and each Package via electronic delivery or via the Account. When an Organization adds new Services, new Packages or new Services within such Packages to its Account, RL shall issue new or updated invoices (if applicable) to the Organization via electronic delivery or via the Account.  Upon renewal, RL will use commercially reasonable efforts to make an invoice available for the Renewal Term of the Services and Package(s) in the Organization’s Account via electronic delivery or via the Account 30 days before the last day of the then-current Services and Package(s).

2.2 Payment. Organization must pay or cause to be paid to RL the amount identified as due on each invoice (“Fees”) on or before the due date on the invoice, or RL may deactivate or limit the applicable Services or Package(s). All Services and Packages are invoiced in advance and are not refundable or cancelable (unless stated otherwise on the invoice or the written agreement, if applicable). Organization is responsible for all Fees related to the acquisition of rights to access and use the Services and Packages, and the providing of Packages to or use of the Services by its Authorized Users. RL may change the Fees at any time without notice to Organization, and such Fees shall be effective upon the next renewal.

2.3 Payment Method. If the Organization or Organization Admin provides RL with a credit card, Organization hereby authorizes RL to charge the credit card for the Fees for the applicable Services and Packages. If not restricted by this Agreement, RL will bill the credit card on file for the applicable Services and Packages renewal unless Organization cancels its Services and Packages for the applicable Renewal Term prior to the commencement of such Renewal Term in accordance with this Agreement or otherwise pays the renewal-related Fees before the due date. Payments may also be made via other methods permitted by RL.

3. Data Requests. When Organization requests any data uploaded by its Authorized Users, RL will follow the procedures described in its Privacy Policy.

4. Services. The User Terms of Use describe and govern Users’ use of and access to the Services. “Services” shall have the meaning ascribed to Services in the User Terms of Use.

5. Licensing. 

5.1 License Grant. Subject to the terms and conditions of the Agreement, RL grants to Organization the non-exclusive, non-transferable, revocable right (including partial revocability) during the Term (as defined below) to (i) download and install the Installed Software on Authorized User’s computers and mobile devices, and (ii) access and use the Services within the particular Package(s) purchased for internal use by Authorized Users. Organization may grant its Authorized Users the rights in (i) and (ii). As a condition of the grant in this section, Organization may not modify, transfer, or otherwise sublicense or distribute the Services to any third party, and Organization may not disassemble, decompile or reverse engineer any aspect of the Services. RL may immediately terminate the foregoing license upon any breach (including any attempted and/or threatened breach) of this Section 5.1.  Upon expiration or termination of the applicable Term, RL may revoke the license granted under this Agreement at any time thereafter (or at any time following violation of this Agreement), and RL may delete all User content from the Services, the applicable Account related to such User and/or remove all such content from any third party hosting services.

5.2 Grants to RL. As between Organization and RL, Organization will retain all ownership rights in its User Submissions; provided, however, such ownership right shall not prevent RL from deleting any User Submissions uploaded to the Services on or after the expiration or termination of the applicable Term or following a violation of this Agreement. By submitting a User Submission to RL, Organization hereby grants to RL a perpetual, worldwide, nonexclusive, royalty-free, fully-paid-up, sublicensable and transferable license to use, post, edit and store Organization’s User Submissions via the Services and servers, and to publish, distribute, publicly perform, create derivatives of and display such User Submissions in connection with the Services and RL's (and its successor's or affiliates) business, including without limitation the right to sell, incorporate or profit from any submitted case studies and modify and adapt the User Submission and distribute such User Submissions to other users, hosting services and third parties for promotional, publishing or other purposes in any media formats and through any media channels now known or hereinafter created. Organization further hereby waives any and all moral rights and all rights of a similar nature in any jurisdiction in Organization’s User Submissions. 

Subject to these Organization Terms, Organization grants the following license rights to RL (and its licensees, sublicensees, distributors and subdistributors): (i) Vital Information: the non-exclusive, royalty-free and perpetual right to all Intellectual Property Rights of Organization and its Authorized Users in the Vital Information to use the Vital Information in connection with the Services; and (ii) Hosting: without limiting the above, RL may sublicense the rights in this Section as necessary to enable any third party hosting of the Services.

5.3 Ownership. Except for the licenses provided in this Section 5, as between RL and Organization, RL owns all Intellectual Property Rights in the Services, RL’s marks and business model, Feedback (as defined below), and any other rights not expressly granted to Organization herein. No other licenses are granted from RL to Organization.

5.4 Feedback. RL owns all Intellectual Property Rights in any Feedback and may use such Feedback for any purpose related to the Services without further approval or acknowledgement, and Organization, on behalf of itself and its Authorized Users, hereby assigns to RL any and all rights in such Feedback throughout the universe in perpetuity. “Feedback” shall mean any comments, information, questions, survey data, data, ideas, enhancement requests, recommendations, descriptions of processes, or other information concerning the Services, whether solicited by RL or provided by Organization or its Authorized Users without any such solicitation.

6. Promotion.  RL may publicize and market Organization as a customer. Subject to RL’s confidentiality obligations hereunder, RL may display on RL’s website and in any and all promotional materials (irrespective of the means of exploitation), Content, or other customer usage scenario referencing or featuring Organization. RL may prepare and utilize testimonials of a reasonable number of Authorized Users, subject to Organization’s prior consent (to the extent Organization is entitled to grant such consent). Organization hereby grants to RL, and represents to RL that it may grant, a non-exclusive, non-transferable, royalty-free license for RL to make use of Organization’s name or logo on RL’s website and in any and all promotional materials (irrespective of the means of exploitation). All such use shall inure to the benefit of Organization, and RL shall have no implied right to any other intellectual property of Organization except as set forth in these Organization Terms. RL shall use commercially reasonable efforts to comply with any use guidelines that Organization provides to RL in writing; provided, that an inadvertent failure to comply with such guidelines shall not be a breach of these Organization Terms.

7. Confidentiality.  Each party (a “Receiving Party”) may be provided or have access to Confidential Information (as defined below) of the other party (a “Disclosing Party”). Confidential Information will not include anything that (a) is authorized by Organization for disclosure to third parties pursuant to the terms of these Organization Terms or use of the Services, as provided herein; (b) is already in the possession of the Receiving Party without obligation of confidence; (c) is independently developed by the Receiving Party without use of Confidential Information; (d) is or becomes available to the general public without breach of these Organization Terms; or (e) is rightfully received by the Receiving Party from a third party without obligation of confidence. Receiving Party agrees that it will not, without the consent of the other party, disclose Confidential Information to third parties or use it in any way except as set forth herein, and Receiving Party will take actions reasonably necessary to protect the confidentiality of the Confidential Information. “Confidential Information” means any proprietary information, technical data, trade secrets or know-how of Disclosing Party, including, but not limited to, research, product plans, and proprietary information concerning products and services, pricing, or other business or technical information of Disclosing Party that is designated to be confidential or proprietary or which reasonably appears to be confidential or proprietary.

8. Term and Termination.  These Organization Terms shall commence upon the applicable commencement date set forth in the Organization’s invoice and will continue for the initial period specified in Organization’s invoice; if no such initial period is designated, for a period of one year (such applicable period, the “Initial Term”). Following the Initial Term, these Organization Terms will automatically renew for additional one-year renewal terms (each a “Renewal Term” and together with the “Initial Term”, the “Term”) and payment shall be due for such Renewal Term by Organization, unless otherwise terminated as provided below. Organization may cancel any or all of its Packages at any time prior to the then-current Initial Term or Renewal Term, as applicable; provided, however, if only some of the Packages are cancelled, such cancellation shall only be effective if the related invoice showed the cost of each Package separately and for any non-cancelled Packages, all discounts, promotions or otherwise shall be removed from and after the cancellation date (and such additional amounts attributable to such removal shall be immediately due and payable by User to RL); provided, further however, Organization shall not receive any reimbursement or refund due to such cancellation for any amounts already paid. RL may terminate these Organization Terms if Organization materially breaches these Organization Terms and fails to cure such breach within five (5) business days after written notice thereof. Upon termination, Organization shall have no further rights hereunder and shall promptly remove any Installed Software from all computers and mobile devices and Organization shall not receive any reimbursement or refund due to such termination for any amounts already paid.

9. Representations and Warranties.  Organization represents to RL as follows: (i) it has the authority to enter into and perform its obligations under these Organization Terms; (ii) it has all secured and will maintain any and all rights, consents and/or releases, including all Intellectual Property Rights, necessary to grant the licenses herein, including from any Authorized Users, independent contractors, governing bodies, conferences or organizations, and parents of Authorized Users that are minors; (iii) the Content, as incorporated into the Services and the RL platform related to the Services by Organization and RL (or RL’s exploitation thereof) in accordance with the terms of these Organization Terms, do not violate, infringe upon, or misappropriate the Intellectual Property Rights, or any other right, of any third party; (iv) there are no existing or threatened claims or litigation which would materially adversely affect or materially adversely impair Organization’s ability to perform under these Organization Terms; (v) it has no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of these Organization Terms or the use or enjoyment by RL of any of the rights herein granted; and (vi) Organization has not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to RL.  RL represents to Organization that it has the authority to enter into and perform its obligations under these Organization Terms.

EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, ORGANIZATION’S USE OF THE SERVICES IS AT ORGANIZATION’S OWN RISK AND PROVIDED AS-IS, WITHOUT ANY WARRANTIES, AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

10. Indemnification.

10.1 RL Indemnification.  RL shall defend or settle any action brought against Organization to the extent that it is based upon a third party claim that the Services, as provided by RL to Organization under these Organization Terms and used within the scope of these Organization Terms, infringes any U.S. patent or any copyright or misappropriates any trade secret with regard to any third party (a “Claim”), and will pay any costs, damages and reasonable attorneys’ fees attributable to such Claim that are awarded against Organization, provided that Organization (i) promptly notifies RL in writing of the Claim; (ii) grants RL sole control of the defense and settlement of the claim; and (iii) provides RL, at RL’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Notwithstanding the foregoing, any and all of RL’s obligations under this Section 10 shall be limited to an amount equal to the Fees paid to RL under these Organization Terms during the twelve months preceding the date on which the liability arises.

If Organization’s use of the Services hereunder is, or in RL’s opinion is likely to be, enjoined due to a Claim, RL may, at its sole option and expense, (i) use commercially reasonable efforts to procure for Organization the right to continue using the Services under the terms of these Organization Terms; or (ii) use commercially reasonable efforts to replace or modify the Services so that it is non-infringing and substantially equivalent in function to the enjoined aspects of the Services; or (iii) terminate Organization’s rights and RL’s obligations hereunder with respect to the enjoined features of the Services and refund to Organization a prorated portion of the Fees paid for such features for the then-current term.

Notwithstanding anything herein to the contrary, RL will have no liability for any infringement or misappropriation claim of any kind to the extent that related to: (i) modifications to the Services made by a party other than RL; (ii) the combination, operation or use of the Services or any other material licensed to Organization hereunder with equipment, devices, software or data not supplied by RL; (iii) Organization’s failure to use an enhancement, upgrade, or update provided by RL; (iv) Organization’s breach of these Organization Terms; or (v) due to any action or inaction of Organization.

THE INDEMNIFICATION AND REFUND PROVISIONS OF SECTION 10.1, SUBJECT TO THE EXCLUSIONS THEREOF, SET FORTH RL’S SOLE AND EXCLUSIVE OBLIGATIONS, AND ORGANIZATION’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

10.2 Organization Indemnification. Organization shall indemnify and hold RL, its affiliates, and their respective directors, officers, and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Organization’s breach of these Organization Terms, including any representations and warranties set forth above. This Section 10.2 shall survive any termination or expiration of these Organization Terms.

11. Limitation of Liability. IN NO EVENT WILL RL BE LIABLE TO ORGANIZATION UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT, REGARDLESS OF WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  RL’S TOTAL CUMULATIVE LIABILITY TO ORGANIZATION FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL NOT EXCEED THE FEES PAID TO RL BY ORGANIZATION PURSUANT TO THESE ORGANIZATION TERMS DURING THE TWELVE MONTHS PRECEDING THE DATE ON WHICH THE LIABILITY ARISES.

12. Miscellaneous.

12.1 If for any reason a court of competent jurisdiction finds any provision of these Organization Terms invalid or unenforceable, that provision of these Organization Terms will be enforced to the maximum extent permissible and the other provisions of these Organization Terms will remain in full force and effect. The parties’ relationship is that of independent contractors. RL may assign these Organization Terms or any of its rights or obligations hereunder (in whole or in part) without Organization’s consent. Organization may not assign, license or transfer these Organization Terms, any Packages without the prior written consent of RL.

12.2 These Organization Terms are governed by the laws of the State of California, except for its conflict of laws provisions. Venue for all disputes arising under these Organization Terms shall lie exclusively in the Superior Courts of the State of California in Los Angeles County or the Federal District Courts of the Central District of California (as permitted by law) and each party agrees not to contest the personal jurisdiction of these courts; provided, however, that RL shall have the right to commence and prosecute any legal or equitable action or proceeding before any other U.S. court of competent jurisdiction to obtain injunctive or other relief.

12.3 Any notices must be given in writing to the other party at the contact information indicated on an order(s) or RL’s website, and shall be deemed given immediately upon personal delivery, three (3) days after deposit in the United States mail by certified or registered mail, one (1) day after overnight express courier; or upon confirmed transmission by fax or confirmed email receipt.

12.4 The Agreement, including and all referenced pages and invoices, if applicable, 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 in these Organization Terms and any other documents or pages referenced in these Organization Terms, the following order of precedence will apply: (1) the terms of any separate written fully-executed agreement, (2) the portions of the applicable User Terms of Use that apply to Organization (if any), (3) the Organization Terms, and (4) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order, vendor onboarding process or web portal, or any other Organization order documentation (excluding documents authored by RL) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.

13. Supplemental Terms

13.1 U.S. Government Organizations. The terms of this Section 13.1 apply only if Organization is a U.S. public or government entity (or use of the Services is for the U.S. Government):

A. Use By or For the U.S. Government. The RL’s platform related to the Services is a “commercial item,” as defined at 48 C.F.R. §2.101, and constitutes “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

B. Governing Law, Auto-Renewal, Venue, Publicity, Indemnification. The sections in the Agreement addressing (i) governing law, (ii) automatic renewal, (iii) venue, (iv) publicity, and (v) indemnification by Organization are hereby waived to the extent they are prohibited by federal law.

13.2 State or Local Government Organizations. If Organization is a state or local government entity, the sections in the Organization Terms addressing (a) governing law, (b) venue, and (c) Organization’s indemnification of RL will not apply to Organization only to the extent Organization’s jurisdiction’s laws prohibit Organization from accepting the requirements in those sections.

13.3 Education Organizations. If Organization is a school or educator in the United States, Organization is responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”) and any applicable state student data privacy laws. Organization shall at least (a) notify minor Authorized Users’ parents/guardians of any personally identifiable information that it will collect and share with RL and (b) obtain parental/guardian consent before its minor Authorized Users sign up or use the Services. When obtaining such consent, Organization should provide such parents/guardians with a copy of RL’s Privacy Policy. Organization must keep all consents on file and provide them to RL upon request. If Organization is located outside of the United States, Organization shall obtain any required consents or approvals from the parent or guardian of any Authorized User covered by similar laws and, as a condition to Organization’s and its Authorized Users’ use of the Services, Organization shall comply with such laws. RL shall secure Organization’s data in accordance with industry standard for education data.