NINJIO, LLC

TERMS AND CONDITIONS

UPDATED JULY 28, 2023

These Terms and Conditions are entered into between NINJIO, LLC, a Delaware limited liability company with offices located at 880 Hampshire Road, Suite B, Westlake Village, CA 91361 ("NINJIO" or "Company") and the customer ("Customer") for the NINJIO products and services (the "NINJIO Products") identified below. NINJIO and Customer may be referred to individually as a "party" and collectively, the "parties."

1.    ONBOARDING. Company will initiate its onboarding process approximately five (5) business days following the Effective Date (defined as Customer signature date), or a future date as otherwise agreed upon by the parties. Delays in the onboarding process shall not modify the Term nor excuse any delay in Customer's payment obligations pursuant to the Quote(s) or these Terms and Conditions. 

2.    SERVICES.

1. Access to the NINJIO Products.  In consideration of payment by Customer of the Fees and its continuing to abide by the Terms and Conditions, Company hereby grants to Customer a limited, revocable, worldwide, non-exclusive, non-transferable, non-sublicensable right (“Subscription”), and during the Term, access to the cloud-based and/or hosted NINJIO platform and/or software as a service, together with any applicable documentation thereto and programming and user infaces therefor, for use of the NINJIO Products solely by Customer's employees and contractors who are permitted by Company to access the NINJIO Products (each, an "Authorized User"). Descriptions and definitions of Products can be found at ninjio.com/products.
   
   
2. Restrictions on Use. Customer will use NINJIO Products only in strict accordance with these Terms and Conditions, and all applicable laws and regulations. Customer, including its Authorized Users, shall not: (i) share any of the NINJIO content or other information related to the NINJIO Products with any third parties; (ii) modify, alter, translate, disassemble, decompile, reverse-engineer or create derivative works based on the NINJIO Products including, but not limited to, the NINJIO Episodes and other videos that are a part of such system; (iii) use the NINJIO Products in a manner that might otherwise benefit a third party; (iv) remove any proprietary notices or labels associated with the NINJIO Products; or use automated means, including screen capture software, spiders, robots, crawlers, data mining tools, or similar data gathering methods to download any NINJIO content or NINJIO Products or otherwise access the NINJIO Products; (v) copy the videos or other content contained in the NINJIO Products; (vi) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the videos or other content contained in the NINJIO Products or (vii) permit the videos contained in the NINJIO Products or any part thereof to become incorporated in any other content.  In the event Company discovers that Customer's or any of its Authorized User's use of the NINJIO Products are in violation of these Terms and Conditions or applicable law, Company may, in addition to any other remedy to which Company may be entitled, prohibit any use of the NINJIO Products in violation of the foregoing.
   
   
3. Customer Responsibilities. Customer shall be responsible at its own cost and expense for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the NINJIO Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (individually and collectively, "Equipment").  Customer shall also be responsible at its own cost and expense for maintaining the security of the Equipment, Customer's account within the NINJIO Products, passwords (including but not limited to administrative and Authorized User's passwords) files, and for all unauthorized uses of Customer's account or the Equipment with or without Customer's knowledge or consent, if such unauthorized access was due to a security breach attributed to an error or omission of Customer.  The Customer shall be responsible and liable for all acts of the Authorized Users.  The Customer shall ensure that each Authorized User comply with all terms applicable to Customer pursuant to the NINJIO Subscription, and Customer shall be responsible and liable for all acts of the Authorized Users that would be a breach of the NINJIO Terms and Conditions if taken, or failed to be taken, by Customer. 
   
   
4. Company Technology Support.  Upon approval and either as notated in the Quote(s) or by separate written authorization by a Company officer, Company will make NINJIO Products available to such Authorized Users by delivering to Customer, or allowing Customer to download, via electronic means, SCORM compliant and other file types that make up the NINJIO Products. Customer is responsible for loading the NINJIO Products into Customer's own SCORM compliant Learning Management System or other Customer provided delivery system. Downloadable content only applies to certain learning products, the availability of which and supported formats may change from time to time and without notice. Additional information can be found at ninjio.com/products.  Any modifications to the included file types requested by Customer, including custom content creation or other file types requested by Customer may be subject to an additional charge.
   
   
5. Security Breach.  If Customer's or Authorized User's account for the NINJIO Products suffers, or is made aware of, a security breach, Customer must promptly, but in no case more than twenty-four (24) hours, notify Company, as Company may have to notify its customers of the security breach if it believes that its other customers may have been affected.  Customer shall take prompt and necessary action to limit and mitigate any such security breach.
   
   
6. End User License Agreement (EULA).  These Terms and Conditions are subject to NINJIO's End User License Agreement (the "End User License Agreement") incorporated herein by this reference and located at ninjio.com/eula.  The End User License Agreement is subject to change from time to time without notice. By agreeing to these Terms and Conditions, Customer agrees to be bound by the End User License Agreement. In the event of a conflict between any provisions in the End User License Agreement and Terms and Conditions, the provisions of the Terms and Conditions will prevail.
   
   
7. Technical & Support Services.  NINJIO will provide Customer with technical and support services as described in our Technical & Support Services outline, incorporated herein by this reference, and located at ninjio.com/sla. Technical and Support Services offered are subject to change from time to time without notice. 

3.    CONFIDENTIALITY; PROPRIETARY RIGHTS.

1. Definitions. Each party receiving information (the "Receiving Party") understands that the other party disclosing information (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the NINJIO Products including, but not limited to, video content, data aggregation, identification, analysis and delivery, and process and methodologies associated with the compromised credentials monitoring and notification services and other NINJIO Products. Proprietary Information of Customer includes non-public, non-personally identifiable data provided by Customer to Company to enable Authorized Users to access the NINJIO Products ("Customer Data").  
   
   
2. Restrictions on Disclosure and Use; Exceptions. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in accessing and using the NINJIO Products as expressly permitted herein), reverse engineer, copy or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, as demonstrated by Receiving Party's files and records in existence at the time of such disclosure, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, as demonstrated by Receiving Party's files and records in existence at the time of disclosure. To the extent Proprietary Information is required to be disclosed by either party by law, including, without limitation, pursuant to a court order, the Receiving Party must provide reasonable notice and an opportunity to contest such disclosure to the Disclosing Party to the extent permissible by law.  
   
   
3. Ownership. Customer shall own all rights, title, and interest in and to Customer Data.  Company shall own (or has obtained the proper right and license to use in the manner described in these Terms and Conditions) and retains all right, title and interest in and to (a) the NINJIO Products (including, without limitation the associated NINJIO Products videos and any ancillary content in whatever medium) and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by Company, its licensors, partners, or affiliates in connection with implementing and making the NINJIO Products available to Customer or supporting Customer in connection with its use of the NINJIO Products, and (c) all intellectual property rights related to any of the foregoing. No rights or licenses in the NINJIO Products (including, without limitation, the associated NINJIO Products videos) are granted except as expressly set forth herein.
   
   
4. Customer Data. Notwithstanding anything to the contrary herein, Company shall have a perpetual, irrevocable, fully paid-up, royalty-free, non-exclusive, worldwide license (with the full right to sublicense) to the Customer Data, including, without limitation (i) to use Customer Data to improve and enhance the NINJIO Products and for other potential development, diagnostic, and corrective purposes in connection with the NINJIO Products and other potential future Company offerings, and (ii) to disclose Customer Data in a de-identified form in connection with its business.

4.    PAYMENT OF FEES; AUTHORIZED USERS.

1. Quotes & Fees.  The NINJIO Products which will be provided to Customer and the related fees (the "Fees") and the payment terms for such NINJIO Products are set forth in one or more quotes (each, a "Quote," and collectively, the "Quotes") executed by NINJIO and Customer from time to time.  The Quote(s) shall be subject in all respects to these the Terms and Conditions.  
   
   
2. Per User Subscription Fees. Customer shall pay Company the then-applicable Per-User Subscription Fees and any other ancillary fees identified in the Quote(s) for enabling Authorized Users to access the NINJIO Products in accordance with the terms herein for the NINJIO Products being subscribed for by Customer for the duration of the Term (collectively, the "Fees").   Customer agrees to pay in full and in accordance with the payment terms outlined on the Quote(s) for Authorized Users to access and use the NINJIO Products up to and including the last day of the Term. For the avoidance of any doubt, unless Customer terminates the NINJIO Subscription pursuant to Section 5(c), all applicable Fees will be due regardless of the number of Authorized Users accessing the NINJIO Products up to and including the last day of the Term. Company may institute an up to a 7% price increase at each Renewal Term without notice to Customer. Such an increase will be calculated based on the then standard NINJIO price schedule before any credits, promotional, or special discounts applied from or during the expiring term. In the event Company institutes a price increase of more than 7% and/or makes subscription packaging changes resulting in an increased price, Company will notify Customer at least sixty (60) days prior to the renewal of the then current Term. In the event of a price increase of greater than 7%, Customer can exercise their rights pursuant to Section 5(a) at the end of the Initial Term or any Renewal Term, provided notice of non-renewal is received by Company no less than forty-five (45) days prior to any such Renewal Term. 
   
   
3. Confirmation of Authorized Users. In order to track the number of Authorized Users to whom the NINJIO Products can be distributed, Company will (i) periodically count the number of users accessing NINJIO Products that are made available to Customer on a learning management system provided and hosted by NINJIO or its designee and (ii) for NINJIO Products downloaded by Customer, request Customer to complete a "Confirmation of Authorized Users" form (the "Confirmation Form") on the Effective Date and every six (6) months thereafter, which Customer must complete within ten (10) business days of receiving the Confirmation Form, indicating the average number of Authorized Users who had access to the NINJIO Products from either (a) the Effective Date or (b) since the last Confirmation of Authorized Users was executed. Upon request by Company at any time, Customer shall provide a report signed by a duly authorized representative of Company, identifying the number of users who have access to the NINJIO Products.  
   
   
4. Usage in Excess of Quantity. Only the designated number of Authorized Users, as contained in the Quote(s), shall be allowed to access and use NINJIO Products during the Term.  For the avoidance of doubt, "Authorized Users" are the number of users who can access NINJIO Products, not the number of users who have viewed the NINJIO Products. If in any period during the Term, Customer's use of the NINJIO Products exceeds the number of Authorized Users set forth in the Quote(s), in the period following such increase, Company will invoice Customer for such excess users, and Customer agrees to pay the additional Fees during the remainder of the Term.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then‑current Renewal Term, by providing written notice to Customer, which notice may be delivered by email.  
    
5. Billing Questions. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than ninety (90) days after the date of the invoice in which the error first appeared, to receive an adjustment or credit, which shall be provided at the sole discretion of Company. Customer's failure to notify Company of any error in an invoice within such time period shall be deemed to be Customer's irrevocable approval of such invoice and the amounts due therein.  Inquiries should be directed to Company's accounting department at ar@ninjio.com. 
   
   
6. Miscellaneous. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, if lower, plus all expenses of collection, including attorney fees and costs, and may result in immediate suspension or termination of Service. Customer shall be responsible for all taxes associated with enabling Authorized Users to access the NINJIO Products, other than U.S. taxes required to be paid by Company based on Company's income. If Customer is based outside of the United States of America, (i) Company may require that Customer pay for NINJIO Products in advance, unless another agreement has been made and (ii) Customer shall ensure that all applicable non-US taxes on sales of the NINJIO Products are collected and remitted to the applicable governing authorities.  

5.    TERM & TERMINATION.

1. Term.  The Term (“Initial Term”) shall commence as of the date the Quote has been signed by the Customer and will continue in effective through the term as contained in the Quote.  Services shall automatically renew for additional periods of the same duration as the initial Quote (“Renewal Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current Term.
   
   
2. Termination for Cause.  Customer may immediately terminate the NINJIO Subscription at any time upon written notice to Company of a material breach of the NINJIO Terms and Conditions by Company that is not cured within sixty (60) days after Company receives written notice from Customer of such material breach.  Company may immediately suspend any and all services under the NINJIO Subscriptions (including the provision of the NINJIO Products to Customer and its Authorized Users) at any time upon written notice to Customer of a material breach of the NINJIO Subscription by Customer that is not cured within thirty (30) days after Customer receives written notice from Company of such material breach.  If such breach by Customer is not cured within sixty (60) days after receipt of written notice of such breach from Company, Company may immediately terminate the NINJIO Subscription. Such termination does not relieve Customer from its payment obligations hereunder. 
   
   
3. Other Termination Events. Either party may terminate the NINJIO Subscription upon on written notice in the event a party (i) files or has filed against it any voluntary or involuntary bankruptcy, reorganization or other proceeding under applicable bankruptcy or insolvency law; (b) is unable to pay its debts as they mature, or (c) makes an assignment for the benefit of its creditors. 
   
   
4. Termination Responsibilities. In the event Customer terminates the NINJIO Subscription for any reason other than that set forth in Section 5(b), Customer shall remain liable to NINJIO for payment in an amount equivalent to any amount unbilled for the remainder of the Term set forth in the Quote(s), as may be applicable. Upon termination of the NINJIO Subscription for any reason, Customer shall, and shall cause its Authorized Users to, delete and destroy any copies of the NINJIO Products and Proprietary Information in Customer's (or its Authorized User's) possession or control, without retaining any copy, extract or reproduction thereof, except for those copies required to be retained for legal or regulatory compliance purposes, and provide certification of such deletion and destruction to Company on a form of certification provided by Company within ten (10) days after the date of termination.  If Customer does not destroy all copies of the NINJIO Products and all of the Proprietary Information (and timely provide written certification of such destruction to NINJIO in a form of certification as requested and provided by NINJIO), all rights, responsibilities, obligations, restrictions, and covenants created by these Terms and Conditions shall continue in effect after the expiration or termination of the Subscription for so long as any of the Proprietary Information shall retain a degree of confidentiality giving value to its protection from competitors.
   
   
5. Survival.  All sections of these Terms and Conditions, which by their nature should survive termination, will survive termination, including, without limitation, Section 4 (Confidentiality; Proprietary Rights), this Section 5 (Term and Termination), Section 6 (Warranty and Disclaimer), Section 7 (Indemnification), and Section 8 (Limitation of Liability) of these Terms and Conditions. 

6.    WARRANTY AND DISCLAIMER.

1. Warranty by Company. Company warrants that it shall provide the NINJIO Products in a professional and workmanlike manner in accordance with the terms and conditions of the NINJIO Subscription. Notwithstanding the foregoing, the NINJIO Products may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or due to causes beyond Company's reasonable control, and Company shall use commercially reasonable efforts to provide advance notice (email being sufficient) of any scheduled disruption to the NINJIO Products. For the avoidance of any doubt, Company does not warrant that the NINJIO Products will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the NINJIO Products.
   
   
2. DISCLAIMER OF RESULTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE NINJIO PRODUCTS ARE A TRAINING TOOL AND THAT COMPANY SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OF ITS AUTHORIZED USERS RELATING TO OR ARISING FROM ANY ACTUAL SECURITY BREACH OR I.T. SECURITY ISSUE CAUSED BY A THIRD PARTY, INCLUDING, WITHOUT LIMITATION, IDENTITY THEFT, HACKING, TAMPERING, RANSOMWARE, UNAUTHORIZED ACCESS OR OTHER SIMILAR ISSUES. CUSTOMER AND ITS AUTHORIZED USERS ASSUME ALL RISK OF DAMAGE AND LOSS RESULTING FROM USE OF THE NINJIO PRODUCTS AND CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE NINJIO PRODUCTS ARE SUFFICIENT FOR CUSTOMER'S PURPOSES AND THE USE AND IMPLEMENTATION OF, AND FAILURE TO USE OR IMPLEMENT, SECURITY CONTROLS NECESSARY OR APPROPRIATE FOR CUSTOMER. WITHOUT IN ANY WAY LIMITING THE FOREGOING, THE EPISODES PROVIDED THROUGH THE NINJIO PRODUCTS ARE NOT INTENDED TO PRESENT THE ONLY, OR NECESSARILY THE BEST, METHOD OR PROCEDURE FOR PREVENTING OR MANAGING A GIVEN SECURITY BREACH OR I.T. SECURITY ISSUE, BUT RATHER PRESENT POSSIBLE APPROACHES AND/OR OPINIONS OF COMPANY.
   
   
3. NO OTHER WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE NINJIO PRODUCTS AND ANY IMPLEMENTATION SERVICES PROVIDED IN CONNECTION THEREWITH ARE PROVIDED "AS IS" AND "AS AVAILABLE" BASIS, AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
   
   
4. Force Majeure. Company's obligation to provide the NINJIO Products hereunder shall be excused without liability when hindered or prevented by strike, act of God, internet outages, pandemic or disease outbreak, governmental action, accident, act of war, act of terrorism or any other condition beyond its reasonable control. Company shall resume providing the NINJIO Products as soon as reasonably practicable following cessation of such condition.

7.    INDEMNIFICATION.

1. Mutual Indemnification. Each party (the "Indemnifying Party") shall indemnify and defend the other party and its officers, directors, employees, agents and affiliates (individually and collectively, the "Indemnified Party") from and against any and all third party claims, demands, suits, fees, judgments, damages, losses, costs and expenses (collectively, "Claims"), including reasonable attorneys' fees and costs incurred in responding to such Claims, that the Indemnified Party may suffer or incur proximately caused by: (i) Indemnifying Party's gross negligence or willful misconduct; (ii) Indemnifying Party's breach of the NINJIO Terms and Conditions; (iii) any claim that content or services provided to the Indemnified Party by the Indemnifying Party infringes or violates any patent, copyright, trademark, or other intellectual property right of a third party or misappropriates any trade secret.
   
   
2. Infringement Indemnification. If any portion of the NINJIO Products become, or in Company's opinion is likely to become, the subject of a claim of infringement, Company shall, at Company's option, either: (i) procure for Customer the right to continue using the NINJIO Products; (ii) replace the NINJIO Products with non-infringing services which do not materially impair the functionality of the NINJIO Products; or (iii) modify the NINJIO Products so that they become non-infringing.  If the foregoing options are not available on commercially reasonable terms and conditions, Company shall have the option to terminate the NINJIO Subscription and, upon such termination, Customer will immediately cease all use of the affected Services. Company shall have no obligation to indemnify to the extent such intellectual property infringement directly arises from Customer's use of the NINJIO Products in violation of the NINJIO Terms and Conditions or use of the NINJIO Products with other infringing intellectual property.   

8.    LIMITATION OF LIABILITY.  EXCEPT IN THE CASE OF A BREACH OF CONFIDENTIALITY (SECTION 3) OR INDEMNIFICATION (SECTION 7), OR IN THE EVENT OF EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THE NINJIO TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL; OR (D) FOR ANY ACTIONS, DAMAGES, CLAIMS, LIABILITIES, COSTS, EXPENSES OR LOSSES ARISING OUT OF, OR IN ANY WAY RELATING TO, THE NINJIO TERMS AND CONDITIONS FOR AN AGGREGATE AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE NINJIO PRODUCTS UNDER THE AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

9.    MISCELLANEOUS.  If any provision of these Terms and Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the NINJIO Terms and Conditions will otherwise remain in full force and effect and enforceable. The NINJIO Subscription and Terms and Conditions are not assignable, transferable, or sub-licensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under the NINJIO Terms and Conditions without consent. These NINJIO Terms and Conditions are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the NINJIO Subscription, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  If Customer submits a purchase order or similar instrument containing Customer's own terms and conditions containing provisions that conflict with the provisions of the NINJIO Terms and Conditions, then such terms and conditions shall be deemed rejected by Company and the provisions of the NINJIO Terms and Conditions shall prevail.  No agency, partnership, joint venture, or employment is created as a result of this agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under the NINJIO Terms and Conditions, the prevailing party will be entitled to recover costs and reasonable attorneys' fees in addition to any other recovery to which such party may be entitled. All notices under this agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  The NINJIO Terms and Conditions shall be governed by the laws of the State of Delaware without regard to its conflict of law or provisions.