TCF Academy Actuator Subscription Agreement

Effective date: 7/06/2021

The following Subscription License Agreement governs your use of The Culture Fix AcademySM presentation methods, process and materials licensed to you by The Culture Fix Academy LLC (“TCFA”) so that while you are a Subscriber, you may implement the Service for your consulting clients or internally within your organization for its employees. This is a legal agreement between you, the person or entity whose details are set out in the account sign-up (the “Subscriber”), and TCFA. By clicking “I Accept” at the end of this Agreement, you acknowledge that you have read it and agree to be bound by its terms as either a TCF Academy Acuator (an independent consultant) or a Self-Acuator (an HR professional will within an organization that will implement the Service with your employees only).

THESE TERMS REQUIRE THAT ALL DISPUTES BETWEEN YOU AND US BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION, NOT IN COURT AND NOT BY CONSOLIDATING COURT CASES OR BRINGING CLASS-ACTION SUITS.  IF YOU DO NOT AGREE TO THIS OR ANY OF THESE TERMS, PLEASE DO NOT SIGN UP FOR OR USE THE SERVICE.

  1. Definitions

1.1       “Agreement” means this Subscription License Agreement, as amended from time to time.  TCFA may change the terms of this Agreement at any time with notice on the TCFA website. Your continued use of the Service after a change in the Agreement constitutes your acceptance of the revised terms.

1.2       “Authorized User” means each individual who signs up to use the Service whether as a Subscriber or under an existing Subscriber, either using the Service as an independent consulting or the authorized employee of an organization using the Service internally within the organization solely for benefit of its employees. All obligations of the Subscriber also bind each Authorized User.  Users should identify themselves as “Culture Fix Acuators” in connection with offering Service content to businesses.

1.3       “Confidential Information” means the Service and any information, technical data, or know-how considered proprietary or confidential by TCFA, including but not limited to, research, methods, processes, techniques, specifications, diagrams, concepts, tool forms, presentation videos, procedures, business and marketing plans and strategies, and financial information disclosed by TCFA before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever.

1.4       “Service” means TCFA’s licensed presentation methods, processes and materials and digital content, including but not limited to tool forms, presentation videos, keynotes, scripts, and models.

1.6       “Subscriber” refers to the individual or entity identified in the account sign-up with TCFA to be an Authorized User of the Service under this Agreement.

  1. Use of the Service

2.1       Subscriber is granted a non-exclusive, non-transferable, limited license to access and use the Service, including its form tools, keynotes, presentation videos, scripts, models, and other content, for the benefit of its consulting clients or the employees of organization in which the Authorized User serves as an HR professional. Subscriber will not modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service or TCFA. Subscriber acknowledges that all right, title and interest in the Service is owned or licensed by TCFA.

2.2       Subscriber agrees not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, in any way that is inconsistent with this Agreement.

2.3       Subscriber agrees that it will not knowingly use or post content in the website portion of the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement. Subscriber will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam,” “SMS” messages, viruses, self-replicating computer programs, “Worms” or any code of a destructive or malicious nature.

2.4       TCFA reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service or the Service itself, with or without notice. TCFA shall provide Subscriber with 30-day’s notice of any modification that materially reduces the intended function or purpose of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

2.5       TCFA reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide notice prior to any such suspension. Such notice shall be provided to you in advance through by way of notification within the Service, email or other notification method deemed appropriate by TCFA. Further, TCFA shall endeavor to confine planned operational suspensions to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs.

  1. Access to the Service

3.1       Subscriber is only permitted to access and use the Service through its Authorized User(s) which sign up for the Service on the TCFA website. Each Authorized User must be identified by full legal name, a valid email address, and any other information reasonably requested by the Service.

3.2       Each Authorized User will need to create his or her own unique password to access and use the Service. This password shall only be used by the Authorized User who created it, and shall not be shared with, or used by any other person, including other Authorized Users.

3.3       All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.

  1. Confidentiality

4.1       Subscriber agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.

4.2       If Subscriber is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Subscriber will provide TCFA with prompt written notice (to the extent permitted by law) prior to such disclosure so that the TCFA may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Subscriber may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.

4.3       Recognizing that much of the Service is proprietary and contains Confidential Information, Subscriber agrees not to create or offer business management consulting that is substantially similar to content offered through the Service.

 

 

  1. Security and Access

5.1       Subscriber will be responsible for protecting the security of Usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.

5.2       Subscriber will implement policies and procedures to prevent unauthorized use of Usernames and passwords, and will promptly notify TCFA upon suspicion that a Username and password has been lost, stolen, compromised, or misused.

  1. Payment, Refunds, and Subscription Changes

6.1       The Service is offered on a subscription basis so that your chosen payment method will be charged at the beginning of each month in advance of the Service being provided to you. Subscribers must pay for the Service using a valid credit card or PayPal. All subscription fees are exclusive of all federal, state, provincial, municipal, or other taxes which Subscriber agrees to pay based on Subscriber’s location, if applicable. TCFA will issue monthly invoices which will include (i) subscription fee due based on the number of Authorized Users, and (ii) all applicable sales taxes, as amended from time to time, for the jurisdiction in which the Subscriber is located, if applicable. In the event of updated tax rates, TCFA will apply the new tax rate without notice to the Subscriber. In addition to any fees, the Subscriber may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges. There are no refunds of subscription fees.

6.2       There are no charges for cancelling a subscription and paid subscriptions which are cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.

6.3       The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Adding Authorized Users or subscription upgrades will trigger prorated charges in the current billing cycle. Subscriber authorizes TCFA to apply updated charge amounts. 

6.4       Subscription fees are subject to change upon notice after the initial subscription period. Such notice may be provided by an email message, or in the form of an announcement on the Service.

6.5       Subscriber is responsible for paying all taxes associated with the subscription to the Service. If TCFA has the legal obligation to collect taxes for which Subscriber is responsible under this section, TCFA will charge that amount to Subscriber, unless Subscriber provides TCFA with a valid tax exemption certificate authorized by the appropriate taxing authority.

  1. Term and Termination

7.1       This Agreement is effective when you select “I Accept” below.  When you sign-up for the Service you will need to indicate whether the term of the subscription is annual or month-to-month which determines whether subscription fee payments will be charged annually or monthly.

7.2       Subscriber may terminate this Agreement and cancel the subscription at any time using the Subscriber’s account management section or with written notice to TCFA at least 30 days prior to the termination date.

7.3       TCFA, in its sole discretion, has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are in material violation of this Agreement or which may undermine the security of the Service.

  1. Limitation of Liability

SUBSCRIBER AGREES THAT THE LIABILITY OF TCFA ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY TCFA FOR THE SERVICE WITHIN THE 30-DAY PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT TCFA IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RECOVERY OR WHETHER THOSE DAMAGES ARE FORESEEABLE OR TCFA HAD BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE SUBSCRIPTION FEE.

  1. Disclaimer of Warranties

9.1       TCFA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE PROVIDED BY TCFA.  THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.”

9.2       TCFA makes no warranty that the Service will be secure or error free. Nor does TCFA make any warranty as to any results that may be obtained from the use of the Service.

  1. Indemnification

Subscriber agrees to indemnify and hold harmless TCFA from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to: (a) Subscriber’s breach of any obligation stated in this Agreement or (b) any act or omission by Subscriber related to use of the Service. TCFA will provide prompt notice to Subscriber of any indemnifiable event or loss. TCFA reserves the right to control the defense, settlement and resolution of all claims, suits, or proceedings, at Subscriber’s sole expense.  Subscriber may not settle or otherwise resolve a claim without TCFA’s prior written consent.

  1. Miscellaneous

11.1     Subscriber acknowledges that TCFA will use third party vendors and hosting partners to provide the necessary hardware, software, networking, and technology required to offer the Service.

11.2     The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.

11.3     This Agreement constitutes the entire agreement between the Subscriber, its Authorized Users and TCFA, and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and TCFA.

11.4     TCFA reserves the right to amend this Agreement. In the event of material changes to the Agreement, TCFA will notify Subscribers, by email, or by other reasonable means of these changes prior to the changes becoming effective. Continued use of the Service by the Subscriber after reasonable notice will be deemed Subscriber’s acceptance of such amendments.

11.5     Neither party may assign any of its rights or obligations, whether by operation of law or otherwise, without the prior written consent of the other party (which will not be unreasonably withheld). However, either party may assign this Agreement in its entirety without consent as part of a merger, acquisition, reorganization, or sale of its assets where the assignee will be bound by this Agreement.

11.6     Governing Law and Binding Arbitration.  This Agreement is governed by the laws of the State of Illinois without regard to its conflict of laws principles.  Subject to all applicable laws, Subscriber agrees to give up: (a) its right to litigate any claims that may arise under this Agreement in court or before a jury; and (b) its right to consolidate any claim and/or participate in any class-action claim that may arise under this Agreement in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising under this Agreement which we cannot amicably resolve with you shall be solely and finally settled by binding arbitration before a single arbitrator administered by ADR Systems in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator may be entered in any court with proper jurisdiction.  Any in-person arbitration hearings shall take place in DuPage County, Illinois. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of Illinois. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. Each party shall pay all of its own costs to participate in the arbitration; provided, however, that the prevailing party shall be entitled to an award for its actual costs incurred, including reasonable attorney’s fees.

11.7     Notices.  All notices required under this Agreement will be in writing and delivered to the other party by email but notices of changes to the Agreement shall be placed on the TCFA website.  Notice to TCFA must be sent to: [email protected].