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Terms and Conditions

A. Definitions

For purposes of this Agreement, the following terms shall have the meanings set forth below:

  1. Administrator
    “Administrator” means an Authorized User designated by Customer who is granted administrative privileges over Customer’s account, as further described within the Services’ user interface.
  2. Affiliate
    “Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. For purposes of this definition, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through ownership of voting securities, by contract, or otherwise.
  3. Authorized User
    “Authorized User” means an employee, contractor, agent, or other individual affiliated with Customer or Customer’s Affiliates who is authorized by Customer to access and use the Services through Customer’s account for the purposes permitted under this Agreement. Customer shall be responsible for all acts and omissions of its Authorized Users in connection with their use of the Services.
  4. Instructor
    “Instructor” means an Authorized User designated by Customer who is assigned instructional duties in connection with Customer’s account, as further described within the Services’ user interface.
  5. Courses
    “Courses” means any course that Customer makes available, presents, administers, or otherwise provides to Authorized Users.
  6. Documentation
    “Documentation” means the user manuals, online help files, training materials, and any other instructional documentation made available by Supplier to Customer regarding the use of the Services.
  7. Effective Date
    “Effective Date” means the date on which Customer first accesses the Services.
  8. LMS Services
    “LMS Services” means the services and related materials provided by Supplier for the structuring, management, and presentation of online courses to Authorized Users, including any proprietary course content developed or provided by Supplier.
  9. Supplier
    “Supplier” or “we” means Focused Academy, operated by Focused Training LLC, a company organized under the laws of the United States of America, with its principal place of business located at 2525 NW Expressway, Suite 608, Oklahoma City, Oklahoma, USA. Supplier shall be the entity entering into the applicable Order with Customer.
  10. Order
    “Order” means a written ordering document executed by both Supplier and Customer specifying the Services to be provided under this Agreement.
  11. Portal
    “Portal” means the unique website address assigned and/or designated by Supplier to Customer for access to the Services.
  12. Services
    “Services” means Supplier’s hosted, internet-accessible learning management solution service, known as Focused Academy, made available to Customer via the Portal.

2.Overview of Services
The Services provided by Supplier include: (a) the LMS Services; (b) the LMS Courses; and (c) any additional content, features, or enhancements made available by Supplier from time to time in its sole discretion.

  1. LMS Services
    Subject to Customer’s compliance with the terms and conditions of this Agreement, Supplier hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the LMS Services solely for Customer’s internal business operations and solely for use by the maximum number of Authorized Users specified in the applicable Order or as reflected in Customer’s account.
    Customer may choose to access Supplier’s paid features by purchasing a Subscription. If Customer purchases a Subscription, Supplier shall use commercially reasonable efforts to make the Services available in accordance with the Service Level Agreement.
    Technical support shall be provided exclusively via email communication directed to Customer’s designated account administrator.
  2. Users
  3. Registration
    Customer must register for an account to access portions of the Services. Customer agrees that the information provided for purposes of account registration is accurate and will be kept accurate and up-to-date at all times. Customer is solely responsible for maintaining the confidentiality of Customer’s account and password and accepts responsibility for all activities that occur under the account. Customer will not share passwords, authentication credentials, or other means of account access with a third party, except Authorized Users. If Customer has reason to believe that Customer’s account is no longer secure, Customer must immediately notify Supplier at [email protected].
  4. User Subscriptions
    The maximum number of Authorized Users that Customer may permit to access and use the Services at any given time shall not exceed the number of user subscriptions purchased by Customer under the applicable Order or elected plan, unless otherwise expressly provided in the elected plan. Each user subscription is assigned to a single, unique Authorized User who shall access and use the Services via password-protected access to the Portal.
    Authorized Users are individually responsible for maintaining the confidentiality and security of their account credentials. Shared logins among multiple Authorized Users are strictly prohibited.
    Customer shall maintain an accurate and up-to-date list of all current Authorized Users. Upon ten (10) days’ prior written notice, Supplier or its duly authorized representative may audit Customer’s relevant records relating to the number of Authorized Users and user subscriptions; provided, however, that such audits shall not occur more than once within any rolling twelve (12) month period. Any personnel conducting such audits shall maintain the confidentiality of Customer’s Confidential Information and comply with Customer’s reasonable security procedures.
    Customer shall use all commercially reasonable efforts to prevent any unauthorized access to, or use of, the Services and/or Documentation.
  5. Agreements
    Customer may implement a separate end user license agreement (“EULA”) to govern the relationship between Customer and its Authorized Users regarding access to the Services, including Customer Delivered Courses. Any EULA shall be solely between Customer and the applicable Authorized Users, and Supplier shall have no responsibility or liability thereunder.
    Any EULA must include legally enforceable provisions that secure all necessary licenses, rights, consents, and permissions from Authorized Users and must comply with this Agreement and all applicable laws, rules, and regulations.
  6. Restrictions on Use

Customer shall have no right to access or use the Services except as expressly authorized under this Agreement. All use of the Services must be strictly in accordance with the terms of this Agreement and the applicable Documentation provided by Supplier.

Customer shall not, and shall not permit or assist any third party to:
(a) modify, alter, adapt, translate, copy, publicly perform, publicly display, or create derivative works based on the Services, or otherwise engage in any act that constitutes copyright infringement under applicable law;
(b) decompile, reverse engineer, disassemble, or otherwise attempt to derive the source code, object code, underlying structure, ideas, know-how, or algorithms relevant to the Services;
(c) merge, bundle, or integrate the Services with other software or systems, except as expressly permitted under this Agreement;
(d) sell, resell, license, sublicense, rent, lease, distribute, publish (publicly or otherwise), display, transfer, or otherwise make the Services available to any third party, whether directly or indirectly, including through a service bureau, time-sharing, or equivalent arrangement, except as expressly permitted under Section 4.3 of this Agreement or the applicable Course Store Terms;
(e) duplicate, copy, or reuse any portion of the HTML/CSS, JavaScript, visual design elements, or concepts (including the “look and feel”) of the Services;
(f) publicly disseminate performance information or conduct benchmarking, stress testing, or similar evaluations of the Services without prior written consent from Supplier;
(g) access, store, distribute, or transmit any viruses, worms, Trojan horses, malware, or other malicious code through the Services;
(h) modify, disable, impair, or otherwise compromise the integrity, security, or performance of the Services, Supplier’s systems, or data (including probing, scanning, or testing the vulnerability of any Supplier system or network);
(i) tamper with or hack Supplier’s systems, circumvent any security or authentication measures, or attempt to gain unauthorized access to the Services, Supplier’s related systems, networks, or data;
(j) decipher, decompile, or otherwise attempt to intercept or access communications to or from the servers running the Services;
(k) overload or attempt to overload Supplier’s infrastructure by imposing unreasonable demands on its systems (including CPU, memory, disk space, or bandwidth consumption);
(l) interfere with or attempt to interfere with the proper functioning of the Services; or
(m) upload, store, transmit, or otherwise include any content in connection with the Services that is unlawful, harmful, defamatory, infringing, harassing, facilitates illegal activity, depicts sexually explicit material, or causes damage or injury to any person or property.

Without limiting Supplier’s other rights and remedies, Supplier reserves the right to suspend or terminate Customer’s access to the Services, without liability, if Customer breaches the restrictions set forth in this Section.

  1. Consequences of Breach

In the event that Customer breaches any of the restrictions set forth in this Agreement, Supplier shall have the right, in its sole discretion and without liability to Customer, to immediately suspend or terminate Customer’s access to the Services, in whole or in part.
Supplier may also pursue any other remedies available at law or in equity, including the right to seek injunctive relief, specific performance, and damages.
Suspension or termination pursuant to this Section shall not relieve Customer of its obligation to pay any fees due under the applicable Order.
Supplier shall use commercially reasonable efforts to provide notice to Customer of any suspension or termination of access, provided that advance notice shall not be required in circumstances where Supplier determines, in its reasonable discretion, that such breach poses an immediate threat to the security, integrity, or availability of the Services or Supplier’s systems.
Customer remains responsible for all acts and omissions of its Authorized Users in connection with any breach of this Agreement.

  1. CUSTOMER’S OBLIGATIONS

Customer agrees to: (a) provide reasonable information and assistance to Supplier to enable the Services to be rendered; (b) comply with all applicable local, state, provincial, national, federal and foreign laws in connections with its use of the Services; (c) notify Supplier immediately upon becoming aware of any unauthorized use of the Services; (d) designate a qualified employee as Customer’s administrator for the Services;  and (e) collect, input, update all Authorized Users data and material provided for use in connection with the Services.

  1. PAYMENT FOR SERVICES

Certain features of the Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and, unless explicitly provided otherwise herein, are non-refundable.

  1. Price and Payment Terms

Supplier reserves the right to determine the pricing for the Services. Supplier will use reasonable efforts to publish current pricing information on its website; however, Customer is encouraged to periodically review the website for the most up-to-date pricing details. Supplier may modify the fees for any aspect of the Services, including by imposing additional fees or charges, provided that Supplier gives Customer advance notice of such changes prior to their effective date.

 

Supplier may, in its sole discretion, offer promotional pricing or discounts to other customers with different features, terms, or pricing structures. Any such promotional offers shall not apply to Customer unless expressly stated otherwise in writing.

All fees specified in the applicable Order or ordering interface are exclusive of all applicable federal, state, local, municipal, or other governmental taxes, including sales, use, value-added, excise, or similar taxes, now in force or enacted in the future, except for taxes based on Supplier’s net income. Customer shall be responsible for the payment of all such taxes related to its purchases under this Agreement.

Unless otherwise stated in the applicable Order, Customer shall pay all undisputed amounts invoiced by Supplier on the first of each month, renewing automatically until cancelled or cessation of contract. For purposes of this Agreement, any invoice transmitted via email shall be deemed received upon transmission. Payment of all amounts due shall be made in accordance with the payment schedule set forth in the applicable Order or ordering interface.

  1. Authorization
    You authorize Supplier or a third-party payment processor to charge all sums for the Orders you enter, orders that you make and any level of Services you select as described in this Agreement or published by Supplier, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, a third-party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
  2. Subscription Services

Paid Services may be offered as automatically recurring subscriptions (“Subscriptions”), with pricing, terms, and any applicable restrictions detailed in the relevant Order. By activating a Subscription, Customer authorizes Supplier to charge all applicable fees and taxes on a recurring basis using the payment method provided, beginning on the Subscription Billing Date and continuing monthly until cancellation or termination.

Subscriptions will automatically renew unless cancelled prior to the next billing cycle. Customer may cancel by contacting [email protected]. If Customer terminates an annual Subscription for convenience within the first three (3) months, a pro-rated refund of pre-paid fees will be issued, less a ten percent (10%) cancellation fee. Refunds are not available for renewal terms. Non-renewal or cancellation may result in loss or deletion of Customer Content.

  1. Delinquent Accounts
    Supplier reserves the right to suspend or terminate access to the Services for any account with outstanding, unpaid amounts. In addition to the overdue balance, Customer may be responsible for any associated fees arising from chargebacks, collections, or other efforts to recover unpaid sums, including reasonable collection and legal fees.
  2. Term of Agreement
    This Agreement shall commence on the Effective Date and remain in effect until terminated in accordance with its terms (the “Term”). Unless otherwise agreed in writing, all active Subscriptions shall automatically terminate upon the effective date of termination of this Agreement.
  3. Termination of Cause
    Either party shall have the right at any time, by giving notice, to terminate this Agreement without liability to the other on the occurrence of any of the following events: (a) if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within thirty (30) days after receipt of notice to rectify served on the defaulting party by the other party; (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt; or (c) if the other party engages in illegal activities.
  4. Termination of Convenience
    Customer may terminate this Agreement any time without cause upon 30 days’ prior written notice to Supplier, in which case any active Subscription will be deemed terminated as well. Customer acknowledges that should Customer terminate for convenience, any pre-paid fees to Supplier corresponding to the unused Subscription term are non-refundable.
    3. Effect of Termination
    Upon termination of these this Agreement: (a) your license rights will terminate and you must immediately cease all use of the Services; (b) you will no longer be authorized to access your account or the Services; (c) you must pay Supplier any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections listed will survive.

    4. Modification of the Services
    Supplier reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you.  Supplier will have no liability for any change to the Services or any suspension or termination of your access to or use of the Services.

  5. Intellectual Property Rights
    Supplier and its licensors retain all rights, title, and interest in and to the Services and all related components, including but not limited to source code, Documentation, Portals, URLs, appearance, structure, organization, preparatory design materials, and all other elements thereof (collectively, the “Materials”). All Materials are the property of Supplier or its third-party licensors and are protected by intellectual property laws.

Except for the limited right to use the Services during the Term as expressly granted under this Agreement, no rights are conveyed to Customer. Supplier reserves all rights not expressly granted herein.

To the extent Customer provides Supplier with any feedback, suggestions, or test results relating to the Services (“Feedback”), Supplier shall exclusively own all rights, title, and interest in such Feedback, and Customer hereby assigns all rights necessary to effectuate such ownership.

Customer agrees to promptly notify Supplier of any third-party claim relating to the intellectual property rights in the Services or Documentation.

  1. Third-Party Services and Linked Websites
    1. The Services may allow integration with or linking to third-party services (e.g., social media platforms) and websites. By using such features, you authorize Supplier to transfer relevant information, including Customer Content, to those third parties. Supplier is not responsible for the content, security, or practices of any third-party service or linked site. Third-party services are not under Supplier’ control, and, to the fullest extent permitted by law, Supplier is not responsible for any third-party service’s use of your exported information.
  2. Third-Party Software
    The Services may include third-party software components provided under open-source or permissive licenses (“Third-Party Components”). Nothing in this Agreement limits your rights to use such components under their respective third-party licenses.
  3. Customer Content
  4. Ownership
    Customer retains all ownership rights in any content uploaded, posted, or otherwise provided to the Services (“Customer Content”).
  5. License to Supplier
    By providing Customer Content, Customer grants Supplier a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to host, store, reproduce, modify for display, distribute, and otherwise use such Customer Content as necessary to provide the Services.
  6. 3. License to Other Users
    If Customer Content is shared with other users via the Services, Customer grants those users a non-exclusive license to access and use such Customer Content as permitted by this Agreement and the functionality of the Services.
  7. Customer Representations and Warranties
    Customer represents and warrants that:
    (a) it owns or has obtained all necessary rights to provide the Customer Content and grant the licenses described herein;
    (b) the Customer Content does not infringe or violate any third-party rights or laws;
    (c) the Customer Content is not offensive, defamatory, or otherwise objectionable; and
    (d) Customer has all necessary consents to grant the rights set forth herein.
  8. Disclaimer Regarding Customer Content
    Supplier does not control or endorse Customer Content and disclaims all liability arising from it. Supplier may, at its sole discretion and without notice, screen, remove, or block any Customer Content that violates this Agreement or is otherwise objectionable. Customer waives any claims against Supplier relating to Customer Content, including claims based on exposure to offensive or infringing material.
  9. Monitoring
    Supplier has no obligation to monitor Customer Content but reserves the right to do so for operational or compliance purposes. Monitoring does not imply control or liability for any Customer Content.
  10. Copyright and Intellectual Property Protection
  11. Infringement Notification
    If you believe materials hosted or distributed through the Services infringe your intellectual property rights, your notice must include:
    (a) your physical or electronic signature;
    (b) identification of the copyrighted work or intellectual property claimed to be infringed;
    (c) identification of the material alleged to be infringing and its location on the Services;
    (d) your contact information (address, telephone number, email);
    (e) a good faith statement that the disputed use is unauthorized; and
    (f) a statement, under penalty of perjury, that the information provided is accurate and that you are authorized to act on behalf of the owner.
  12. Repeat Infringers
    Supplier reserves the right to terminate accounts of users deemed to be repeat infringers.
  13. Course Compliance Responsibility

The Supplier has delivered content that is generally consistent with the requirements established by the State for all applicable courses. However, it shall be the sole responsibility of the Customer to ensure full compliance with all State-specific educational and regulatory requirements. This includes, but is not limited to, verifying the adequacy of instructional hours, curriculum content, and any additional standards or mandates imposed by the relevant State authorities.

  1. Confidential Information
  2. Confidentiality Obligations
    During the Term, each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) confidential or proprietary information (“Confidential Information”). Confidential Information includes all materials marked as confidential at the time of disclosure, as well as information a reasonable person would understand to be confidential, including without limitation the Services, pricing, and the terms of this Agreement.

The Receiving Party shall:

  • maintain the confidentiality of the Confidential Information;
  • not disclose it to any third party without prior written consent; and
  • use it solely to perform its obligations or exercise its rights under this Agreement.
  1. Exclusions
    Confidential Information does not include information that:
    (a) becomes publicly available without breach of this Agreement;
    (b) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information;
    (c) is received lawfully from a third party without confidentiality restrictions; or
    (d) was already in the Receiving Party’s lawful possession without confidentiality obligations.
  2. Disclosure Required by Law
    Receiving Party may disclose Confidential Information as required by law or court order, provided it gives prompt notice to the Disclosing Party and cooperates in limiting the disclosure.
  3. Return or Destruction
    Upon request, the Receiving Party shall promptly return or destroy all Confidential Information and any copies or extracts thereof.
  4. Third-Party Access
    Receiving Party may disclose Confidential Information to third parties solely as needed to exercise rights or perform obligations under this Agreement, provided such third parties are bound by confidentiality terms at least as protective as those herein.
  5. Feedback
    All Feedback shall be deemed the Confidential Information of Supplier.
  6. Limited Warranty and Disclaimer
  7. Mutual Warranties
    Each party represents and warrants that:
    (a) it is duly organized, validly existing, and in good standing under applicable law;
    (b) it has full power and authority to enter into and perform its obligations under this Agreement; and
    (c) it has taken all necessary corporate action to authorize the execution and performance of this Agreement.
  8. Supplier Warranty
    Supplier warrants that, during the Term and under normal use in accordance with the Documentation, the Services will materially conform to the Documentation.
  9. Disclaimer
    Except as expressly stated herein, the Services and Materials are provided “as is” and “as available.” Supplier disclaims all warranties, express, implied, or statutory, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Supplier does not guarantee that the Services will be uninterrupted, secure, error-free, or free of harmful components.
    Customer acknowledges that it has not relied on any warranties or representations outside of this Agreement. Supplier disclaims all liability for any discrepancies between fees charged to Authorized Users and fees owed to Supplier.
    The limitations, exclusions, and disclaimers in this Section apply to the maximum extent permitted by law, except to the extent prohibited under applicable law.
  10. Limitation of Liability
  11. Damages Exclusion
    To the fullest extent permitted by law, Supplier and its affiliates shall not be liable to Customer for any indirect, incidental, special, consequential, or punitive damages (including lost profits, goodwill, or other intangible losses) arising from or relating to Customer’s use of or inability to use the Services, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, even if Supplier has been advised of the possibility of such damages.
  12. Liability Cap
    To the fullest extent permitted by law, Supplier’s total cumulative liability arising out of or relating to this Agreement shall not exceed the greater of: (a) the total amount Customer paid to Supplier for the Services in the twelve (12) months preceding the event giving rise to the claim; or (b) one hundred dollars ($100).
  13. Risk Allocation
    The limitations in this Section reflect the parties’ allocation of risk and form an essential basis of the bargain between the parties. Each limitation applies even if a limited remedy fails of its essential purpose and remains severable from other provisions of this Agreement.
  14. INDEMNIFICATION

Customer will defend, indemnify, and hold Supplier harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with: (a) Customer’s breach of any laws or regulations (including with respect to privacy); (b) Customer’s or any Authorized User’s use of the services; and (c) Customer’s violation of any agreements it has with any Authorized User.

  1. Modification
    Supplier may modify this Agreement at any time with seven (7) days’ prior notice. Material modifications require Customer’s acceptance to continue using the Services; immaterial modifications become effective upon publication. If Customer objects to a material change during an active Subscription term, Customer may terminate the affected Subscription by providing notice within thirty (30) days of the change and will receive a pro-rated refund of pre-paid fees for the unused portion of the term. Except as expressly permitted herein, this Agreement may only be amended by a written agreement signed by both parties. Disputes will be governed by the version of the Agreement in effect at the time the dispute arose.
  2. Sanctions and Export Controls
    Customer acknowledges that the Services may be subject to U.S. and international export control laws and sanctions regulations. Customer agrees to comply with all applicable export, re-export, and sanctions laws, including the U.S. Export Administration Regulations and sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control.
    Customer represents and warrants that it is not:
    (a) located in, organized under the laws of, or ordinarily resident in Cuba, Iran, North Korea, Syria, or sanctioned regions of Ukraine (including Crimea, DNR, or LNR);
    (b) a denied, restricted, or prohibited party under applicable laws; or
    (c) owned or controlled by any such party.
    This clause survives termination or cancellation of the Agreement.
  3. Miscellaneous
  4. Notices
    All notices under this Agreement must be in English, in writing, and delivered by first-class mail, confirmed facsimile, or major courier service to the address specified in Customer’s account or to Supplier at 2525 NW Expressway, Suite 608, Oklahoma City, OK 73112.
  5. Entire Agreement
    This Agreement constitutes the entire understanding between the parties regarding its subject matter and supersedes all prior agreements and communications. Terms in any Customer purchase orders or similar documents shall have no effect. Any amendments must be in writing and signed by both parties.
  6. Severability
    If any provision of this Agreement is found invalid or unenforceable, it shall be limited or eliminated to the minimum extent necessary, and the remainder shall remain in full force and effect.
  7. Waiver
    No waiver of any breach shall be deemed a waiver of any other or subsequent breach.
  8. Force Majeure
    Neither party shall be liable for delays or failures caused by events beyond their reasonable control, excluding financial inability. If a Force Majeure event continues for more than thirty (30) days, the non-affected party may terminate this Agreement upon written notice.
  9. Marketing
    During the Term, Customer agrees to participate in reasonable marketing efforts and allows Supplier to use Customer’s name, logo, website URL, testimonials, and feedback for marketing purposes. Upon Customer’s request, Supplier will cease future use, excluding materials already produced.
  10. Assignment
    Customer may not assign this Agreement without Supplier’s prior written consent, except to an Affiliate or in connection with a merger, acquisition, or sale of assets. Supplier may terminate this Agreement if assigned to a direct competitor. Supplier may freely assign this Agreement. Any unauthorized assignment is void.
  11. Governing Law and Jurisdiction
    This Agreement is governed by the laws of the State of Oklahoma, without regard to conflict of laws principles. Customer consents to the exclusive jurisdiction and venue of the state and federal courts located in Oklahoma.