Usage Based Billing Agreement
Effective Date: July 10, 2023
This Usage Based Billing Agreement (this “Agreement”) is entered into by and between The Computing Technology Industry Association, Inc. (“Company”) and the entity or person agreeing to the Agreement
Organization”), each a “Party” and collectively the “Parties.” This Agreement consists of the
terms and conditions contained herein, the Order Form, Exhibit A, the Product Catalog, Exhibit B, the LMS Integration Work Order (if applicable), and Exhibit C, the
Content Provider Authorization, as each may be updated, amended, revised, or supplemented from time to time. The Parties hereby agree to the following terms and conditions:
- Subject to the terms and conditions of this Agreement, Company agrees to make available to Organization those Products, as may be offered from time to time on the Product Catalog set forth in Exhibit A, (each a “Product Title”
or “Title”). The Product Catalog consists of three sections: Exhibit A-1: CompTIA Learning Products, Exhibit A-2: CompTIA Lab Products, and Exhibit A-3: TestOut Products (known collectively
as “Exhibit A”).
- Company shall have the right to add, subtract, correct, revise, or otherwise modify the list of Product Titles (or the Product Titles themselves), including without limitation retiring any Product Title and offering a new version thereof,
whether offered for sale to Organization and/or any other buyer at any time.
- Except as otherwise identified in this Agreement, these terms and conditions apply to Organization, regardless of whether Organization selects to access Product Titles through Company’s proprietary LabSim platform, through Company’s
third-party Training Management System (“TMS”), or through integration with Organization’s Learning Management System (“LMS”).
- Pricing. Exhibit A shall set forth the agreed pricing for each Product Title (“License Fee”) available to Organization. To the extent that the License Fee for any Title changed and/or a new Title is added
to the existing Exhibit A Product Catalog, Company shall provide Organization written notice of the foregoing no later than ten (10) days prior to the effective date of such updated Exhibit A (“Revised Exhibit A”). Any existing Exhibit
A shall be automatically superseded and replaced by such Revised Exhibit A as of the effective date listed therein, without any requirement for the Parties to execute an updated Agreement or Exhibit A.
- Fee Triggers.
- Activation of CompTIA Learning Products. The License Fee for CompTIA Learning Products shall represent the cost per license activated by a Student Authorized End User upon initial launch into the applicable CompTIA Learning
Product Title, such activation as recorded on the corresponding CompTIA Product Platform (a “License Activation”). Organization’s act of registering Authorized End Users to access any Title and License
Activations therein shall constitute its intentional selection of such Title, without requiring execution of any written instrument, and Organization agrees to pay the corresponding License Fee provided in the Product Catalog then in effect
at the time of such License Activations. License Activations are non-cancelable, and License Fees paid are non-refundable.
- Activation of CompTIA Lab Products and TestOut Products. The License Fee for CompTIA Lab and TestOut Products represent the cost per License Enrollment, License Activation, or LMS License Activation, as applicable (each, a
License Fee Trigger”). Organization’s act of enrolling or providing access to Authorized End Users in any CompTIA Lab or TestOut Product Title shall constitute its intentional selection of such Title, without
requiring execution of any written instrument, and Organization agrees to pay the corresponding License Fee provided in the Product Catalog then in effect at the time of such License Fee Trigger. License Fee Triggers are non-cancelable, and License Fees already paid are non-refundable.
- Drops or Withdrawals. If Organization is an academic institution, Organization may ask Company to remove charges for students who dropped or withdrew from the program if the following conditions are met: 1) the student did not consume
more than two (2) hours of the applicable Product; and 2) the drop or withdrawal occurred within thirty (30) days of any License Fee Trigger, as defined in Paragraph 3(b). Organization must make any such request to Company in writing (including
via email) and within thirty (30) days of the applicable drop or withdrawal.
- License Term. Subject to compliance with this Agreement and Authorized End User Terms, each license is valid for twelve (12) months from the date of the License activation or License Fee Trigger (“License Term”).
- Invoices. Company shall send an invoice to Organization on or about the fifteenth of each month for the total License Fees due based upon License Fee Triggers occurring in the preceding month. Organization shall pay Company the full
invoice amount including sales tax if applicable (without deduction, set-off, or counterclaim) within thirty (30) days of receipt of invoice, unless any sums are disputed in good faith within fourteen (14) days of receipt of invoice. To the extent Organization uses a credit card for any payment over five thousand dollars ($5,000.00), Organization shall incur a three and a half percent (3.5%) service fee on any such payment.
Failure of Organization to pay any non-disputed amounts when due shall be sufficient cause for Company to suspend or terminate access to any Product Title, without limitation to any other rights or remedies.
- Organization’s Responsibilities. Organization shall designate one or more authorized employees or agents to act as administrator (“Administrator”) on behalf of Organization to manage the rights and
responsibilities granted herein. The Administrator shall be responsible for identifying and registering names, emails, and/or other personal information (“Personally Identifiable Information”) of end users with permission
to access any selected Product Title, including without limitation instructors, supervisors, and students (each, “Authorized End User”). The Administrator shall be responsible for assigning an Authorized End
User in the role of student (“Student Authorized End User”) or other non-student role (“Non-Student Authorized End User”). Company shall have the right, but not the obligation, to examine
role assignments at any time to ensure role provisioning power is not misused; any abuse shall be grounds for immediate termination of this Agreement. Organization bears the sole responsibility for the Administrator’s actions and/or inactions,
including determining which individuals to enroll or register as an Authorized End User (and what role to assign them) per Title and obtaining any consents necessary for registering such individuals. Further, each Party represents and warrants
that it shall handle and protect Personally Identifiable Information in accordance with applicable laws and regulations.
of Product Titles (together, “Authorized End User Terms”). In the event of any conflict between the Authorized End User Terms and the terms of this Agreement as applied to Authorized End Users, the Authorized End User
Terms shall control. Organization acknowledges and agrees that it shall not acquire any rights, titles, or interest in any Product Titles (including any updates, modifications, additions, alterations, or revisions thereto or derivative works created
therefrom), whether belonging to Company or its third-party licensors, by virtue of this Agreement other than the licenses granted hereunder, and Organization disclaims any such rights, titles, interests, or ownership. Organization and its Authorized
End Users shall not take any action to jeopardize, limit, or interfere with the intellectual property rights of Company or its third-party licensors.
- Third Party Access.
- Without limiting the generality of the foregoing, Organization acknowledges and agrees that Company is permitted to provide Exhibit C, Content Provider Authorization (or a copy thereof), to the third-party platform provider for CompTIA Labs
- Access through Third-Party TMS. The Administrator and Non-Student Authorized End Users shall have access to launch any Product Titles available through a third-party TMS. The
Administrator shall, in its discretion, select any method available on the third-party platform to provide access rights to Student Authorized End Users. The access method selected shall affect Organization’s billing. Where Organization
opts for individual enrollment of Student Authorized End Users to access any Title on a designated course start date, Organization shall incur a charge for all Student Authorized Users enrolled on such date, regardless of whether such
Student Authorized End User actually launches such Title (each, “License Enrollment”). Where Organization opts to provide training keys to Student Authorized End Users, Organization shall incur a charge when
the training key is redeemed, and the Title is launched (each, “License Activation”). The Administrator assumes responsibility for not enrolling or providing training keys to any Non-Student Authorized End
Users, as otherwise Organization shall incur a charge.
- Access through LMS Integration. Organization shall incur a charge for both Student and Non-Student Authorized End Users accessing
a Product Title through LMS Integration upon initial launch into the Title by any such Authorized End Users, unless otherwise agreed in writing (each, “LMS License Activation”). LMS License Activation is triggered
regardless of whether only a portion or all of the Title is accessed.
- Confidentiality. The contents of this Agreement including the Exhibits hereto constitute confidential information that shall not be disclosed by Organization without the prior written consent of Company, except as otherwise required
by law, regulation, or court order.
- No Warranty. THE PRODUCTS AND LMS INTEGRATION SERVICES (IF APPLICABLE) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT GUARANTEE ANY SPECIFIC RESULTS, UPTIME, PERFORMANCE, OR ERROR-FREE OPERATION.
- Limitation of Liability. COMPANY SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, UNDER ANY THEORY, FOR LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXPEMPLARY DAMAGES, WHETHER OR NOT
FORESEEABLE OR CONTEMPLATED BY THE PARTIES. COMPANY’S AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, LIABILITY, OR EXPENSE SUFFERED OR INCURRED BY ORGANIZATION AND/OR ANY AUTHORIZED END USER OR THIRD PARTY, IN ANY WAY ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, SHALL NOT EXCEED THE AMOUNTS PAID UNDER THIS AGREEMENT BY ORGANIZATION IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH
- Assignment. Organization may not assign this Agreement without Company’s prior written consent.
- Term & Termination. The term of this Agreement shall commence on the Effective Date and shall continue in effect from year to year thereafter, unless (a) terminated by Company at any time, with or without cause, upon written notice
to Organization at the mailing or email address provided on the cover page hereof; or (b) terminated by Organization, with or without cause, by providing ten (10) days’ written notice to Company’s legal department at [email protected],
with a copy to [email protected].
- Post-Termination Access to Products. Upon termination, Organization and/or any Administrator shall no longer have permission, and shall not take any action, to enroll, provide access, add, or remove any Authorized End Users
for any Product Title. Further, upon termination, (a) in the context of direct access, Authorized End Users (both Student and Non-Student) who have activated a license on or before the effective date of termination shall continue to have
access to the applicable Product Title for the duration of the corresponding License Term; (b) in the context of LMS Integration access, all existing Student and Non-Student Authorized End Users shall no longer have access to any Product
Titles, and their respective LMS License Terms shall automatically terminate with the termination of this Agreement; (c) in the context of TMS access, all existing Student Authorized End Users and Non-Student Authorized Users shall continue
to have access to any Product Titles to which they were provided access before the termination effective date for the remainder of their respective TMS License Terms (and Organization and/or Administrator shall not take any action to disable
such access); and (d) in the context of CompTIA Learning Products, Authorized End Users (both Student and Non-Student) who have activated a license on or before the effective date of termination shall continue to have access to the
applicable CompTIA Learning Product Title for the duration of the corresponding License Term. Organization shall remain responsible to pay for any unpaid License Activations and License Fee Triggers regardless of whether they occur before
or after the effective date of termination in accordance with the payment terms set forth herein. Company shall have no liability whatsoever to Organization or any Authorized End User or other third party for any termination of this Agreement
or termination of access to any Product Title resulting from the actions or inactions of Organization and/or Administrator contrary to the terms of this Agreement.
- Notice. All notices concerning this Agreement shall be given in writing, as follows: (i) by actual delivery of the notice into the hands of the Party entitled to receive it; (ii) by mailing such notice by registered or certified
mail, return receipt requested; (iii) by email so long as receipt is confirmed by recipient; or (iv) by Federal Express, UPS, DHL or any other overnight carrier. All notices to Company shall be sent to ATTN: CompTIA Legal, 3500 Lacey
Rd, STE 100, Downers Grove, IL 60515 with a copy to [email protected]. Notices to Organization shall be addressed as set forth on the first page of this Agreement.
- Survival. All provisions of this Agreement, which by their nature contemplate survival beyond termination of this Agreement shall survive such termination, including without limitation accrued rights to payment, confidentiality,
warranties, disclaimers, and limitations and exclusions of liability.
- Entire Agreement. This Agreement, including any document incorporated herein by reference, contains the entire understanding between the Parties regarding the subject matter hereof, supersedes all prior or contemporaneous
understandings and agreements regarding the subject matter hereof. Any use of Organization’s pre-printed forms, such as purchase orders, are for convenience only, and any terms and conditions therein that are in addition to, inconsistent
with, or different than the terms of this Agreement (including the Exhibits hereto) shall be given no force or effect.
- Governing Law. This Agreement shall be construed in accordance with the laws of the State of Illinois, without reference to any conflicts of laws principles that would cause the application of the laws of any other jurisdiction.
- Severability. If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, then such invalidity, illegality, or unenforceability shall not affect any other term or provision
of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. From time to time, Company may update or modify the Product Titles or this Agreement, provided that: (a) the change and modification applies to all customers generally, and are not targeted to any particular customer
or partner; (b) no such change will override or supersede Section 12 (Limitation of Liability); (c) no such change or modification will materially reduce the security protections or overall functionality of the applicable Product Title;
and (d) any such change or modification will apply only prospectively, and will not apply to any breach or dispute that arose between the parties prior to the effective date of the change or modification. Unless otherwise noted by Company,
such amendment becomes effective ten (10) days after Company provides notice to Organization of such amendment. Company may provide such notice by posting an amended Agreement on https://comptia.org/ubbterms/ and the links referenced therein. Changes required by any applicable laws will be effective immediately. Organization’s continued use of the Product(s) after the amendment takes effect may be relied upon by Company as Organization’s
consent to the amendment. Except as stated in this Paragraph 15(f), no modification of, amendment to, or waiver of any rights under the Agreement will be effective unless in writing and signed by an authorized signatory of each Organization
- Counterparts. The Parties may execute and/or transmit the Agreement (including the Exhibits) by electronic means, in one or more counterparts, which together shall be deemed to be one and the same original instrument.