EKPASS WEB-BASED TRAINING ACCESS AND USE AGREEMENT

 

This agreement ("Agreement") is a legal agreement between ek pass Corp. (EKpass) and any individual, corporation, company or other entity ("user" or "you") that accesses any Web-based Training offered by EKpass. For the purposes of this agreement, "Web-based Training" (or "WBT") shall be defined as a set of online instructive materials posted on a restricted web site (the "Web Site") and made accessible by EKpass to properly licensed users. BY ACCESSING EKPASS'S WEB-BASED TRAINING WEB SITE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE WEB BASED TRAINING.

 

  1. Use Grant. Subject to the terms and conditions of this Agreement, EKpass hereby grants you a nonexclusive, non-transferable limited right, as stipulated in your WBT authorization code document, to access and use the WBT for which you are properly licensed solely for your internal training purposes and not for any other purpose. It is your sole responsibility to obtain and maintain equipment and software, including without limitation operating system and browser software, that permits connection to and communication with the Web Site over the World Wide Web and to use the WBT provided.

  2. Ownership of Web-based Training. You understand and agree that any WBT provided by EKpass, including without limitation any software, images, applets, photographs, animation, video, audio, music, and text incorporated in the WBT as well as the user documentation and accompanying materials, are owned by EKpass. or permission for use has been granted to EKpass by third parties ("Licensors"), and are protected by United States and Canadian copyright laws and International treaty provisions. You acknowledge and agree that the entire right, title and interest in and to the WBT and accompanying materials, including associated intellectual property rights, shall remain with EKpass and its Licensors. Unless otherwise noted, the trademarks, trade names, logos, and service marks used on the WBT web site (the "Marks") are owned by EKpass, or by third parties who have granted permission to use to EKpass. Other use of the Marks, except as specifically permitted in writing signed by EKpass, is strictly prohibited. EKpass retains all rights not expressly granted.

  3. Confidentiality. The WBT, including without limitation any software, images, applets, photographs, animation, video, audio, music, and text incorporated in the WBT or by third parties who have granted permission to use to EKpass and related methodology, concepts, and screen views are confidential and proprietary to EKpass or by third parties who have granted permission to use to EKpass. The User agrees that it will not in any way use any confidential information revealed to it by EKpass for its own benefit (other than for personal training purposes), or for the benefit of any third party, or disclose it to any third party. Participant further agrees that it will take every reasonable precaution to protect the confidentiality of such information.

  4. Restrictions on Use. You agree that you shall not: (a) modify or remove any proprietary notices displayed by the Web Site; (b) access the WBT by any means other than a standard web browser having support for secure and encrypted communications; (c) attempt (or authorize or encourage or support others’ attempts) to copy, reverse engineer, disassemble, decompile, translate, or modify any WBT; (d) sublicense, rent, lease, or permit any third party to use the WBT; (e) use the WBT for any third party training, for time-sharing arrangements, or for the benefit of any third party; (f) directly or indirectly export any WBT in violation of the export laws and regulations of the United States or Canada or International Treaty Provisions; or (g) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of any WBT; or (h) transmit any unsolicited communications including spam or bulk email using our servers; or (i) pretend to be someone else OR impersonate someone else; or (j) place excessive loads on, or attempt unauthorized access to this website; or (k) forge headers or otherwise manipulate identifiers like URL’s; or (l) misrepresent your affiliation with a person or organization; or (m) engage in activities that would violate any local, state, provincial, national or international laws, or any regulations having the force of law, including but not limited to attempting to compromise the security of any networked account or site; or (n) attempt to collect or store personal data about other users or otherwise extract data or data files; or (o) behave in a manner that affects other users' ability to use the Website; or (p) hold EKpass or its affiliates, directors, and employees liable for any loss, liability, damage, or expense asserted by any third party related to your use of this website.

    You agree that you: (a) consent to the collection and processing of information that you are requested to provide during the registration process; and (b) will provide accurate and complete information about yourself as required by the registration form and to update this information if it changes; and (c) will keep your password and username secure and private; and (d) accept all risks of unauthorized access to information and registration data.

  5. Password/Security Procedures. Upon your agreement to these terms and conditions, EKpass will provide a password within a WBT authorization code document that will permit you to access and use the WBT for a specified term. The WBT may incorporate certain procedures, methods, practices, security devices, codes, and access methods (the "Security Procedures") designed to verify that you are authorized to access and use the WBT. You agree not to (i) disclose any password assigned to you for use of the WBT to any third party or (ii) permit use of the WBT by any third party. You agree to promptly notify and cooperate with EKpass upon discovering or having reason to suspect that any of the Security Procedures or other provisions of this Agreement may be compromised.

  6. Service Level; Accessibility. EKpass shall use commercially reasonable efforts to maintain the accessibility of the WBT for twenty-four (24) hours a day, seven (7) days a week, throughout the term of this Agreement. User acknowledges that from time to time the WBT or portions thereof may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades, malfunctions, and causes beyond the reasonable control of EKpass, including without limitation the interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.

  7. Support. Limited support services relating to the WBT may be available. Information on how you may access such support services will be provided separately upon your registration.

  8. Modification. EKpass has the right at any time and without prior notice to modify the WBT as it sees fit.

  9. No Warranty. EKPASS PROVIDES THE WBT ON AN "AS IS" BASIS. EKPASS DOES NOT WARRANT THE ACCURACY, PERFORMANCE, OR COMPLETENESS OF THE WBT, OR THAT THE WBT WILL MEET USER'S REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EKPASS DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  10. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EKPASS OR ITS AFFILIATES OR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING IN ANY WAY OUT OF ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE WEB SITE OR ANY OF ITS CONTENTS, INCLUDING THE WBT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, EVEN IF EKPASS IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  11. Disclaimer of Liability. EKPASS AND ITS DIRECTORS, EMPLOYEES, AGENTS AND SUB CONTRACTORS SHALL NOT UNDER ANY CIRCUMSTANCES INCLUDING NEGLIGENCE BE HELD LIABLE FOR ANY CLAIMS BY ANY PARTIES WHICH MAY ARISE IN RELATION TO THE WBT, INCLUDING ACTIONS TAKEN BY THE USER AS A RESULT OF THIS TRAINING. THIS DISCLAIMER SHALL REMAIN IN EFFECT AFTER TERMINATION OF TRAINING.

  12. Indemnification by User. You shall defend, indemnify and hold harmless EKpass, its affiliates, suppliers and distributors, and their respective officers, directors, employees, and agents from any and all losses, claims, liabilities and expenses (including reasonable attorneys' fees), regardless of the form of action: (i) arising out of or in any way related to your use of the WBT hereunder; or (ii) resulting from your breach of this Agreement. EKpass agrees to notify you in writing of any claim indemnifiable by you under this provision, to cooperate in defending or settling such claim, and to give you sole authority to control the defense and settlement of such claim.

  13. Regulatory Compliance. All information presented is, to the best of our knowledge, current at time of printing and is intended for general application. Publications are not a definitive guide to government or other applicable regulations or to practices and procedures wholly applicable under every circumstance. The appropriate regulations and statutes should be consulted. EKpass cannot guarantee the accuracy of, nor assume liability for, information presented. Requirements for regulatory bodies vary depending on the work environment and/or location. User assumes full responsibility for ensuring their compliance with the regulatory body, regulations, and statutes pertaining to the work the user is doing.

  14. WBT Certification. COMPUTER-BASED TRAINING IS NOT A REPLACEMENT FOR ACTUAL SEAT TIME OPERATING THE EQUIPMENT. WBT CERTIFICATES ISSUED BY EKPASS INDICATE SUCCESSFUL COMPLETION OF KNOWLEDGE TESTING MECHANISMS IN THE WBT AND RELATED TO THEORY DISCUSSED WITHIN THE COURSE ITSELF AND DO NOT REPRESENT THE CERTIFICATE HOLDER’S ABILITY TO PHYSICALLY OPERATE THE MACHINE IN QUESTION.

  15. Term. This Agreement shall become effective upon your acceptance of these terms and conditions and shall remain in effect for so long as you access and use the WBT. This Agreement may be terminated by EKpass immediately upon your breach of any of the terms of this Agreement and for non-payment. EKpass may terminate your use of any or all of the WBT if, in EKpass's sole judgment, your use of the WBT (a) presents a material security risk or will interfere materially with the operation of the Web Site, (b) is subject to an order from a court or governmental entity directing EKpass to cease permitting such use, (c) violates applicable law or infringes any intellectual property or proprietary right of any other party, or (d) violates export control laws or regulations of the United States, Canada or another country. Sections 3, 10,  11, 12, 15, 16 and 20 of this Agreement shall survive termination or expiration of this Agreement for any reason.

  16. Force Majeure. To the extent that your use of the WBT, or any portion thereof, is prevented, hindered, delayed or made impracticable by reason of force majeure (including any cause that cannot be overcome by reasonable diligence and without unreasonable expense) or due to EKpass's compliance with its commercially reasonable standard operating procedures or with any laws, rules, policies, practices or regulations of any industry association or organization, or any jurisdiction or governmental authority, EKpass will be excused from such delay or performance.

  17. Dispute Resolution. Disputes shall be settled by arbitration in St. Albert, Alberta, Canada. EKpass shall be entitled to recover its costs and disbursements incurred in any proceeding hereunder, together with reasonable attorneys' fees to be fixed by the arbitrator or court at trial or on appeal. Nothing in this paragraph shall derogate from the rights of the parties to seek preliminary injunctive relief in a court of law to preserve the status quo.

  18. Refund Policy. Refunds will apply only if end user is unable to access course content due to technical issues which originate from the EKpass Learning Management System, so that the end user is unable to complete the purchased course. Please contact support@ekpass.com for further information.

  19. Minimum Age.  You must be at least 18 years of age to enter into this agreement.

  20. General. You may not assign, delegate or otherwise transfer this Agreement or your rights or obligations hereunder without the prior written consent of EKpass. Any attempted assignment of this Agreement without consent from EKpass shall be invalid and unenforceable. This is the entire agreement and understanding between you and EKpass with respect to the subject matter hereof, and supersedes all prior agreements, representations, negotiations, proposals and understandings, whether written or oral, including those made by sales representatives or dealers of EKpass, concerning the subject matter hereof. This Agreement may not be amended or modified except in writing and signed by authorized representatives of the party against whom the amendment is sought to be enforced. The waiver or failure by either party to claim a breach of any provision shall not be a waiver of a breach of any other provision or a subsequent breach of the same provision. The suppliers to EKpass of software included in the Program shall be deemed third-party beneficiaries of this Agreement, to the extent permitted by law. Any notices required or permitted to be given to under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, if to EKpass, to General Counsel, EKpass, 64 Riel Drive, St. Albert, Alberta, Canada, T8N-4A4 and if to you, addressed to your registered user at your registered address. This Agreement shall be governed by the laws of the Province of Alberta, Canada without regard to conflicts of law principles.

North America Toll Free

1-800-638-9524

Outside North America

1+780-459-5850

US OFFICE

EKpass

100 Congress Ave.

Suite 2000

Austin, TX, 78701 USA

CANADIAN OFFICE

EKpass

64 Riel Drive, Suite 6

St. Albert, AB, Canada T8N-4A4

CANADIAN OFFICE

EKpass

2366 Avenue C North

Saskatoon, SK, Canada S7L-5X5

North America Toll Free

1-800-638-9524

Outside North America

1+780-459-5850

US OFFICE

EKpass

100 Congress Ave.

Suite 2000

Austin, TX, 78701 USA

CANADIAN OFFICE

EKpass

64 Riel Drive, Suite 6

St. Albert, AB, Canada T8N-4A4

CANADIAN OFFICE

EKpass

2366 Avenue C North

Saskatoon, SK, Canada S7L-5X5

Outside North America

1+780-459-5850

Outside North America

1+780-459-5850

US OFFICE

EKpass

100 Congress Ave.

Suite 2000

Austin, TX, 78701 USA

CANADIAN OFFICE

EKpass

64 Riel Drive, Suite 6

St. Albert, AB, Canada T8N-4A4

CANADIAN OFFICE

EKpass

2366 Avenue C North

Saskatoon, SK, Canada S7L-5X5