These Terms and Conditions are made by and between iOpening Enterprises Inc. (“iOE”) and SOCRATES SCULPTURE PARK (“Customer”) and is effective as of agreement date (“Effective Date”). Unless otherwise specified, all references to this Agreement include any and all Service Orders to this Agreement. iOE and Customer are referred to as the “Parties” and each may be referred to as a “Party.”
In consideration for the mutual covenants and promises set forth herein, the Parties hereby agree as follows:
“Customer Data” means any data of Customer that is provided by Customer to iOE (including through the Service). Customer represents and warrants that it will not provide or make available to iOE, and that Customer Data shall not include, with the exception of employee names and email addresses, any data or information that constitutes personal data or personal information as those terms are defined under applicable laws. In the event that the Parties contemplate the sharing of personal data or personal information, they must execute a data protection addendum to this Agreement prior to such sharing of data.“
iOE Property” means any and all tangible and intangible and now known or hereafter existing (a) rights associated with iOE works of authorship or Services throughout the universe, including but not limited to copyrights (including without limitation the sole and exclusive right to prepare “derivative works” (as defined in the Copyright Law) of the copyrighted work and to copy, manufacture, reproduce, distribute copies of, modify, publicly perform and publicly display the copyrighted work and all derivative works thereof), moral rights, author’s rights and mask-works, (b) rights in and relating to the protection of trademarks, service marks, trade names, “look” and “feel”, goodwill, merchandising rights, advertising rights and similar rights, (c) rights in and relating to the protection of trade secrets and confidential information, (d) patents, designs, algorithms and other industrial property rights and rights associated therewith, (e) other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated) relating to intangible property that are analogous to any of the foregoing rights (including, without limitation, logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise, (f) registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force in the U.S. and throughout the universe (including, without limitation, rights in any of the foregoing), and (g) rights in and relating to the sole and exclusive possession, ownership and use of any of the foregoing throughout the universe, including, without limitation, the right to license and sublicense, franchise, assign, pledge, mortgage, sell, transfer, convey, grant, gift over, divide, partition and use (or not use) in any way any of the foregoing now or hereafter (including, without limitation, any claims and causes of action of any kind with respect to, and any other rights relating to the enforcement of, any of the foregoing).
“Service Orders” means the mutually executed schedules of services to be provided or made available by iOE in accordance with this Agreement.
“Services” means the services described on one or more Service Orders attached hereto, each as amended from time to time pursuant to Section 12.2.
“Confidential Information” means all information and data, including, but not limited to, all business, planning, performance, financial, product, trade secrets, technical, sales, marketing, contractual, employee, iOE and customer information and data, disclosed orally, in writing or electronically to the iOE by the Customer hereunder. Confidential Information shall not include information which (i) is or becomes generally available to the public without the iOE’s fault, (ii) is lawfully obtained by iOE from a third party or parties unconnected to the Customer, without breach of any confidentiality obligations hereunder, or (iii) is required to be disclosed by law.
Provision of Services. iOE will provide the Services to Customer in accordance with the terms of this Agreement and pursuant to the description and any specifications set forth herein and in the applicable Service Order for such Services.
Restrictions on Use. Customer cannot and will not permit any of its employees or contractors acting on Customer’s behalf to: (i) use any Services in a manner that is inconsistent with the terms of this Agreement; (ii) modify, adapt, translate, copy, decompile, disassemble, or reverse engineer any portion of the underlying software or processes to any Services.
Use of Customer Data. iOE may use Customer Data solely to provide Services to Customer and to provide professional services under contract.
Protection of Customer Data. iOE will use commercially reasonable efforts to implement and maintain reasonable and appropriate information security policies and processes (including technical, administrative and physical safeguards) designed to prevent unauthorized access to, or use or disclosure of Customer Data.
Rights to Customer Data. Customer owns all right, title, and interest (including all intellectual property rights) in and to the Customer Data.
iOE Property. Customer agrees that iOE owns all right, title and interest (including all intellectual property rights) in and to the iOE Property. Customer shall cooperate fully and in good faith with iOE for the purpose of securing and preserving iOE’s rights, titles, and interests in the iOE Property. Customer agrees that its use of the elements of the iOE Property inures to the benefit of iOE and that Customer shall not acquire any rights in the iOE Property. Customer recognizes the value of the goodwill associated with the elements of the iOE Property and acknowledges that the elements of the iOE Property and all rights therein including the goodwill pertaining thereto, belong exclusively to iOE. Any materials created by Customer based on or in relation with the iOE Property pursuant to this Agreement will be deemed, to the extent possible, a “work made for hire” for iOE under the U.S. Copyright Act (or a “commissioned work” or other designated type of work under any other applicable similar laws of other jurisdictions). iOE will be deemed the author and the exclusive owner of such material, and all copyrights, trademark rights, and other intellectual property rights therein. To the extent any such material cannot be deemed a “work made for hire” as set forth above, Customer hereby assigns to iOE all right, title, and interest in and to such material, including all copyrights, trademark rights and other intellectual property rights therein. If Customer has any rights, including without limitation “moral rights,” in such material that cannot be assigned, Customer hereby waives any such rights and agrees that it will not seek to enforce such rights against iOE and iOE will have the right to revise, condense, abridge, expand, adapt, change, modify, add to, subtract from, re-title, re-draw, re-color, translate, and otherwise modify such material without Customer’s consent. In the event that any of the above-referenced rights cannot be assigned or waived, Customer hereby grants to iOE an exclusive, worldwide, irrevocable, perpetual, fully-paid, royalty-free, freely transferable license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, and digitally transmit such material for any purpose in any and all media now known and, to the extent permitted under applicable law, any and all media later devised. Customer may use iOE Property solely in connection with the Service and shall return or destroy iOE Property at the expiration or termination of this Agreement, or at any such other time as may be requested by iOE.
Use of logos. Customer hereby grants to iOE the express right to use Customer's company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as an iOE customer. iOE hereby grants to Customer the express right to use iOE's logo solely to identify iOE as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party's marks, codes, drawings or specifications without the prior written permission of the other party.
Use of Generative AI and External Tools. Customer agrees not to upload, input, or otherwise transmit any ETR-owned, proprietary, confidential, or intellectual property content into publicly accessible generative artificial intelligence tools or platforms (e.g., ChatGPT, Google Gemini, Microsoft Copilot, or similar) without prior written approval from iOE. Use of such tools may pose unacceptable risks to the security, confidentiality, and intellectual property of iOE materials. This includes but is not limited to training designs, strategic documents, internal communications, and participant data. The Customer acknowledges that: iOE Materials may not be used as training data or entered into any AI system that retains, stores, or otherwise uses submitted inputs to train or refine machine learning models. Customers must disclose any intent to use generative AI tools in the execution of their deliverables and receive documented approval prior to use. Violations of this clause may be considered a breach of contract, subject to termination and potential legal remedy, including indemnification for any resulting intellectual property exposure or regulatory non-compliance.
iOE shall keep confidential all Confidential Information disclosed to it and shall take all necessary precautions against unauthorized disclosure of the Confidential Information. iOE shall not directly or indirectly disclose, permit access to, transmit or transfer any Confidential Information to any third party without the prior written consent of Customer. iOE shall not use or copy any Confidential Information except as may be reasonably required to perform the Services.
iOE acknowledges that the Customer has or may receive in the future from third parties its confidential or proprietary information subject to a duty on the part of the Customer to maintain the confidentiality of such information and to use it only for certain limited purposes related to the Services. iOE shall hold all such confidential or proprietary information in the strictest confidence and shall not disclose it to any person or organization or use it except as strictly necessary in providing the Services in a manner consistent with the Customer’s agreement with such third party.
iOE shall ensure that each of its employees, contractors or agents that is given access to the Customer’s Confidential Information executes a confidentiality agreement pursuant to which such employee, contractor or agent is obligated to protect the Customer’s Confidential Information to the same extent as iOE is required to protect such information under this Agreement. iOE shall provide copies of such executed documents to the Customer upon request.
Representations and Warranties. Customer represents and warrants to the other that (i) it has full right and power to enter into and perform under this Agreement, without any third party consents or conflicts with any other agreement; (ii) its use or provision, as applicable, of the Services is in compliance with all applicable laws, regulations, and orders, including those relating to privacy and data protection; (iii) its use or provision, as applicable, of the Services does not and will not infringe, violate, or misappropriate the intellectual property or privacy rights of any third party; (iv) there are no pending or threatened claims pertaining to such party’s ability to use or provide the Services or any similar service, or that would prevent such party from fulfilling its obligations under the Agreement.
Warranty Disclaimer. EXCEPT FOR THE PERFORMANCE WARRANTY SET FORTH IN THIS AGREEMENT AND THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 5.1, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO INFORMATION OR ADVICE PROVIDED BY iOE, OR BY ITS EMPLOYEES, CONTRACTORS OR AGENTS, SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED HEREUNDER.
Fees. Customer agrees to pay the fees associated with the Services selected by Customer, whether such Services are purchased through an online checkout page, direct payment link, Service Order, invoice, or other written ordering process provided by iOpening Enterprises (“iOE”). The applicable fees, scope of Services, and any included deliverables or access periods will be identified at the time of purchase or in the applicable Service Order, proposal, checkout page, product description, or written confirmation.
Online Purchases. For Services purchased through iOE’s online checkout platform, including LearnWorlds or any related payment page or direct payment link, payment is due at the time of purchase unless otherwise stated. Customer authorizes iOE and/or its third-party payment processor to charge the selected payment method for the full amount shown at checkout, including any applicable taxes, processing fees, or other charges disclosed at the time of purchase. Customer’s completion of the online checkout process and acceptance of these Terms constitutes authorization to proceed with the selected Services, subject to iOE’s confirmation of scheduling, participants, timeline, and implementation details.
Invoices and Service Orders. For Services purchased by invoice or Service Order, Customer will pay all undisputed fees set forth in each invoice issued by iOE within fifteen (15) days of the date of such invoice unless otherwise specified in the applicable Service Order. All payments shall be made in U.S. dollars in immediately available funds. In the event that Customer disputes any invoice, Customer shall provide written notice of such dispute within thirty (30) days following receipt of such invoice, and such notice shall detail the nature of the dispute. Customer shall work in good faith to promptly resolve any such dispute with iOE and shall pay any undisputed portion of the invoice in accordance with the terms hereof.
Late Payments. Late payment fees apply only to invoiced amounts that are not paid by the applicable due date. If payment is not received by the due date, late fees will be assessed as follows: three (3) to seven (7) calendar days after the due date, a late fee of ten percent (10%) of the total unpaid invoiced amount will be applied; eight (8) to fifteen (15) calendar days after the due date, a late fee of fifteen percent (15%) of the total unpaid invoiced amount will be applied; sixteen (16) or more calendar days after the due date, a late fee of twenty percent (20%) of the total unpaid invoiced amount will be applied for each thirty (30)-day period past the due date until payment is received. Customer must notify iOE in advance if a late payment is anticipated. iOE reserves the right to waive late fees at its discretion, provided that written notice of the anticipated late payment is received prior to the due date. In the event of Customer’s failure to pay any undisputed amounts within the agreed timeline, iOE may, following five (5) days’ written notice, suspend all Services until Customer has paid any such unpaid amounts.
Scheduling and Service Activation. Payment through an online checkout page confirms Customer’s selection of the applicable Service but does not guarantee any specific session date, facilitator, coach, or delivery timeline unless expressly stated in writing by iOE. Following purchase, iOE will contact Customer to confirm participants, scheduling, implementation details, and next steps. Services are subject to mutual availability and the scope, access period, and use limitations described at the time of purchase or in the applicable written confirmation.
Taxes. Customer is responsible for all applicable taxes, duties, levies, or similar governmental assessments associated with the purchase of Services, except for taxes based on iOE’s income. For online purchases, applicable taxes may be calculated and collected at checkout by iOE or its third-party payment processor. For invoiced Services, each invoice shall specify the amount of any taxes to be paid by Customer, and Customer shall not be responsible for paying any amounts for taxes unless such amounts are expressly specified in the applicable invoice. If withholding of any tax is required under law in respect to any payment by Customer to iOE hereunder, Customer shall (i) withhold the appropriate amount from such payment, (ii) pay such amount to the relevant taxing entity as required by law, and (iii) increase the amount of the payment to iOE such that the payment is equal to the amount that would have been due to iOE absent such withholding. Upon request from iOE, Customer shall provide a copy of the tax receipt documenting payment of taxes to the relevant taxing entity. Each Party will be responsible for any taxes on property it owns or leases, for any franchise or privilege tax on its business, and for any tax based on its income or gross receipts.
Term. (a) This Agreement starts on the Effective Date and continues until expiration or termination of all Service Orders for Services hereunder. Each Service Order shall specify terms for this Agreement. The Term may end earlier if this Agreement is terminated by either party pursuant to Section 7.2. (b) Customer may terminate this Agreement or any Service Order at any time by giving iOE written notice at least thirty (30) calendar days’ prior to the effective date of termination, provided that Customer pays the entire amount due under the remaining term under the contract prior to, however, Customer shall remain liable for payment of all fees for Services rendered through the effective date of termination or non-refundable fees. Customer shall not be entitled to any refund of pre-paid fees in the event of termination pursuant to this Section 7.1(b).
Termination. Unless otherwise agreed upon by the parties, either party may terminate this Agreement upon thirty (30) days advance written notice to the other party (a) if the other party breaches any material term of this Agreement, and fails to remedy such breach within thirty (30) days of receiving notice to do so by the non-defaulting party, (b) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within thirty (30) days or (c) the other party makes any assignment for the benefit of creditors, becomes insolvent, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement or compromise with its creditors under any statute or otherwise. In the event this Agreement or any Service Order is terminated pursuant to this Section 7.2, Customer shall remain liable for the payment of all fees set forth in the Service Order (as may be amended pursuant to Section 12.2) until the end of the then-current scheduled term of such Service Order, provided however, in the event the Customer terminates this Agreement pursuant to this Section 7.2, Customer shall remain liable for payment of all fees for services through the effective date of termination. Except where an exclusive remedy may be specified, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
Survival. Sections 3.1, 3.3, 3.4, 5.2, 7.1, 7.2, 7.3, 9 through 11, 12.1, 12.2 and 12.5 through 12.10 shall survive the termination and/or expiration of this Agreement.
iOE is a vendor of Customer, and not an employee, partner, agent, or joint venture partner. Each of Customer and iOE are solely responsible and liable for its own income and employment taxes, insurance premiums and employment benefits. No employee of one party is eligible for any benefits (including stock options, health insurance or retirement benefits) provided by the other party to its employees.
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S BREACH OF ITS OBLIGATION TO REFRAIN FOR MAKING ANY PERSONAL DATA OR PERSONAL INFORMATION AVAILABLE TO iOE, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES DUE TO BE PAID BY CUSTOMER TO iOE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE FIRST CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY: (A) FOR INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) FOR DEATH OR PERSONAL INJURY DUE TO NEGLIGENCE; (C) FOR FRAUD, (D) FOR GROSS NEGLIGENCE OR FROM WILLFUL OR INTENTIONAL MISCONDUCT; (E) FOR BREACH OF SECTION 4 (CONFIDENTIALITY); (F) UNDER SECTION 11 (INDEMNIFICATION); OR (G) ANY OTHER MATTER IN RESPECT OF WHICH LIABILITY CANNOT LAWFULLY BE LIMITED OR EXCLUDED.
Customer hereby irrevocably releases any claims it may have against iOE, its affiliates, directors, officers, managers, partners, employees, members, owners, shareholders, and representatives of the forgoing (the “iOE Released Parties”) that are related to: (a) any decisions made by Customer after receiving the Services from iOE; (b) any employment or contractual relationship between the Customer and a third party which relationships Customer expressly acknowledge that iOE shall not be considered a party to and shall not be considered a joint employer therein; and (c) any use by a third party of the Services including any misappropriation, infringement or other unlawful activity that a third party may undertake after obtaining the Services in contravention of the Terms or applicable laws, rules or regulations.
Indemnification by Customer. Customer will indemnify, defend and hold harmless iOE, and its affiliates (including its and their respective directors, officers, employees and agents) from and against any and all third party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) (“Claims”) arising from gross negligence or willful misconduct of Customer’s performance of its obligations under the Agreement or those claims brought by third parties against the iOE Released Parties as set forth in Paragraph 9 of this Agreement.
Indemnification by iOE. iOE will indemnify, defend and hold harmless Customer and its affiliates (including its and their respective directors, officers, employees and agents) from and against any and all third party Claims arising from (i) gross negligence or willful misconduct in iOE’s performance of the Services or other obligations under this Agreement; or (ii) any claim that the Services or the use thereof in accordance with the terms of this Agreement infringes any intellectual property right of a third party or is a misappropriation of any third party trade secret.
Indemnification Procedures. The indemnified party will: (i) give the indemnifying party prompt written notice of any Claim; provided, however, that failure to provide such notice shall not relieve the indemnifying party of its liabilities or obligations hereunder, except solely to the extent of any material prejudice as a direct result of such failure; (ii) cooperate with the indemnifying party, at the indemnifying party’s sole cost and expense, in connection with the defense and settlement of the Claim; and (iii) permit indemnifying party to select counsel (but with the indemnified party’s advice and input) and to control the defense and settlement of the Claim; provided that the indemnifying party may not settle any Claim or take any other action to the extent such settlement or other action would materially adversely impact the indemnified party’s rights, obligations or business operations without the indemnified party’s prior written consent. The indemnified party, at its cost and expense, may participate in the defense of the Claim through counsel of its own choosing. Notwithstanding the foregoing, if the indemnifying party fails to assume the defense of any Claim within thirty (30) calendar days after the indemnifying party receives a request for indemnification under this Section 11, the indemnified party shall control its own defense and follow such course of action as it reasonably deems necessary to protect its interests and shall be fully indemnified by the indemnifying party for all costs (including attorneys’ fees and settlement payments) reasonably incurred in such course of action.
Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that either party without such consent may assign this Agreement to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such party’s voting securities or assets. The Party making a permitted assignment must provide notice prior to such assignment becoming effective and the non-assigning party shall have the right immediately to terminate this Agreement in the event that such assignment is to an entity deemed in good faith by the non-assigning Party to be one of its competitors. Non-permitted assignments are void. If a Party terminates pursuant to Section 12.1, Customer shall remain liable for payment of all fees for Services rendered through the effective date of termination.
Service Orders. The parties may mutually agree to modify or amend any of the terms set forth on a Service Order at any time, with such agreement to be evidenced by the parties' signature to the amended Service Order.
Force Majeure. Notwithstanding anything herein to the contrary, neither Party shall be liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes,, other acts of God, acts or omissions of third party utilities, Internet service providers, hosting providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control.
Notice. Any notice or consent under this Agreement will be in writing to the physical or email address specified below.
Severability. If any provision is found to be unenforceable, it will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
No Waiver. Waivers must be signed by the waiving party and one waiver will not imply any future waiver.
Injunctive Relief. The Parties agree and acknowledge that any violation of Sections 2.2 with 3.1- 3.4, 4.1-4.4 will cause irreparable harm and injury to the non-breaching Party and that, in addition to all other remedies that may be available in law or otherwise, the aggrieved Party shall be entitled to seek equitable relief, including injunctive relief, against the threatened or actual breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages. The Parties waive any requirement for security or posting of a bond in connection with any such equitable remedy.
Governing Law; Jurisdiction. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of, the State of California without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a state or federal court in Los Angeles County, California, and each party irrevocably submits to the jurisdiction and venue of such courts. EACH PARTY HEREBY WAIVES ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREES TO EXCLUSIVE JURISDICTION AND VENUE IN CALIFORNIA.
Non-Exclusive. Nothing herein prohibits iOE from creating or offering the Services or entering into any similar agreement with any other party.
Entire Agreement. This Agreement (which includes all Service Orders) is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter.
