ROC-P

End User License Agreement

Last Updated: January 1, 2022

This End User License Agreement (this “Agreement”) is a binding agreement between ROC-P, LLC and the user (“you”) of ROC-P’s online certification platform (the “Application”). ROC-P, LLC is a limited liability company organized and operating under the laws of the State of Iowa, having its principal place of business at 215 2nd Ave. SE Ste. 300, Cedar Rapids, Iowa 52401.

ROC-P PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “I AGREE” BUTTON, YOU REPRESENT AND WARRANT THAT (A) YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; (B) YOU HAVE GOOD RIGHT, TITLE, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF AND ON BEHALF OF ANY ENTITY OR PERSON THAT YOU PURPORT TO REPRESENT (WHICH ENTITY OR PERSON SHALL BE CONSIDERED PART OF YOU FOR PURPOSES OF THESE TERMS); (C) THE USE OF THE APPLICATION AND THE ENTERING OF THIS AGREEMENT HAS BEEN DULY AUTHORIZED AND APPROVED BY ANY ENTITY OR PERSON THAT YOU REPRESENT; AND (D) EFFECTIVE AS OF THE DATE YOU FIRST USE THE APPLICATION, THIS AGREEMENT CONSTITUTES VALID AND BINDING OBLIGATIONS ENFORCEABLE AGAINST YOU AS DESCRIBED HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR IF YOU ARE UNABLE TO MAKE THE FOREGOING REPRESENTATIONS AND WARRANTIES, YOU MUST NOT DOWNLOAD OR USE THE APPLICATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY APPLICATION THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF ROC-P’S APPLICATION.

1. DEFINITIONS

For purposes of this Agreement, the following terms have the following meanings:

“Documentation” means ROC-P’s user manuals, handbooks, and guides relating to the Application, which ROC-P provides to you, and whether in electronic or in hard copy form.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Fees” means the fees, including all taxes thereon, paid or required to be paid for the license granted under this Agreement, as set forth in the applicable MSA or Order Form.

“MSA” means the applicable written and duly executed ROC-P Software as a Service Master Subscription Agreement by and between ROC-P and you or the entity with which ROC-P has agreed to provide the Application to you.

“Order Form” means the applicable written and duly executed Order Form for ROC-P Certification Management Platform by and between ROC-P and you or the entity with which ROC-P has agreed to provide the Application to you.

“ROC-P Terms and Conditions” means ROC-P’s Terms and Conditions, which are incorporated into this Agreement by this reference.

“Term” has the meaning set forth in Section 9.

2. LIMITED LICENSE

Subject to and conditioned upon payment of all Fees and your strict compliance with all terms and conditions set forth in this Agreement, ROC-P hereby grants to you a non-exclusive, non-transferable, non-sublicensable, license during the Term to use the Application and Documentation solely for your internal use.

3. THIRD-PARTY MATERIALS

The Application and Documentation may include software, content, data, or other materials, including related documentation, that are owned by persons or entities other than ROC-P and that are provided to you on terms that are in addition to or different from those contained in this Agreement (“Third-Party Licenses”). You are bound by and shall comply with any Third-Party Licenses. Any breach by you of any Third-Party License is also a breach of this Agreement.

4. USE RESTRICTIONS

You shall not use the Application for any purposes beyond the scope of access granted in this Agreement or for any purpose in violation of the ROC-P Terms and Conditions. Without limiting the foregoing, you shall not, at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Application or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Application, in whole or in part; (iv) remove any proprietary notices from the Application or Documentation; or (v) use the Application or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

5. RESPONSIBILITY FOR USE

You are responsible for and liable for all uses of the Application and Documentation through access provided by you, directly or indirectly. Specifically, but without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Application and Documentation by any other person or entity to whom you may provide access to or use of the Application or Documentation, whether such access or use is permitted by or in violation of this Agreement.

6. MAINTENANCE AND SUPPORT

(A) Subject to the below, the license granted hereunder entitles you to basic software maintenance and support services described on the applicable MSA and/or Order Form.

(B) Maintenance and support services may include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively “Updates”) as ROC-P makes generally available free of charge to all licensees of the Application then entitled to maintenance and support services. ROC-P may develop and provide Updates in its sole discretion, and you agree that ROC-P has no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed part of the Application, and related documentation will be deemed part of the Documentation, all subject to the terms and conditions of this Agreement. You acknowledge that ROC-P may provide some or all Updates via download from a website designated by ROC-P and that your receipt thereof will require an Internet connection, which connection is your sole responsibility. ROC-P has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Application that ROC-P may issue as a separate or new product, and ROC-P may determine, in its sole discretion, whether any issuance qualifies as a new version, new release, or Update.

(C) ROC-P reserves the right to condition the provision of maintenance and support services, including any or all Updates, on your registration of the copy of the Application for which support is requested. ROC-P has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Application; (ii) for any copy of the Application for which all previously issued Updates have not been installed; (iii) if you are in breach under this Agreement; or (iv) for any Application that has been modified other than by ROC-P, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation.

7. COLLECTION AND USE OF INFORMATION; PRIVACY

You acknowledge that ROC-P may, directly or indirectly through the services of third parties, collect, use, maintain, disclose, or otherwise process (collectively, “Process”) information regarding your use of the Application and about equipment on which the Application is installed or through which it is otherwise accessed and used. ROC-P will Process such information, which may include information that can be used to identify a natural person, consistent with its Privacy Policy.

8. INTELLECTUAL PROPERTY RIGHTS

You acknowledge and agree that the Application and Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in the Application or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. ROC-P reserves and shall retain its entire right, title, and interest in and to the Application and all Intellectual Property Rights arising out of or relating to the Application, except as expressly granted to you in this Agreement. You shall safeguard the Application and any copies thereof from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify ROC-P if you become aware of any infringement of ROC-P’s Intellectual Property Rights in the Application and fully cooperate with ROC-P in any legal action taken by ROC-P to enforce its Intellectual Property Rights.

9. TERM AND TERMINATION

(A) This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”).

(B) You may terminate this Agreement by ceasing to use and destroying all copies of the Application and Documentation.

(C) ROC-P may terminate this Agreement, effective immediately, if (i) you breach this Agreement; (ii) you or the entity with which ROC-P has agreed to provide the services to you has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (iii) ROC-P otherwise determines, in its sole discretion, that it has good cause to terminate this Agreement. ROC-P may otherwise terminate this Agreement as provided in the MSA and/or Order Form.

(D) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and you shall cease using and destroy all copies of the Application and Documentation. No expiration or termination shall affect your obligation to pay all fees that may have become due before such expiration or termination, nor will expiration or termination entitle you to any refund.

10. DISCLAIMER OF WARRANTIES

You understand and agree that ROC-P cannot and does not guarantee or warrant that the Application will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Application for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, ROC-P WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE APPLICATION OR ANY OTHER SERVICE OR WEBSITE LINKED TO THE APPLICATION.

YOUR USE OF THE APPLICATION, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION IS AT YOUR OWN RISK. THE APPLICATION, ITS CONTENT, AND ANY SERVICES OR MATERIALS OBTAINED THROUGH OR IN CONNECTION WITH THE APPLICATION ARE PROVIDED “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. UNLESS OTHERWISE REQUIRED BY LAW OR PROVIDED IN AN EXPRESS, WRITTEN AGREEMENT BETWEEN YOU AND ROC-P, NEITHER ROC-P NOR ANY PERSON ASSOCIATED WITH ROC-P MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE APPLICATION. WITHOUT LIMITING THE FOREGOING, AND AGAIN UNLESS REQUIRED BY LAW OR PROVIDED IN AN EXPRESS, WRITTEN AGREEMENT BETWEEN YOU AND ROC-P, NEITHER ROC-P NOR ANYONE ASSOCIATED WITH ROC-P REPRESENTS OR WARRANTS THAT THE APPLICATION, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

11. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PROVIDED BY LAW, AND UNLESS PROVIDED IN AN EXPRESS, WRITTEN AGREEMENT BETWEEN YOU AND ROC-P, IN NO EVENT WILL ROC-P, ITS AFFILIATES, OR ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE, UNDER ANY LEGAL THEORY, WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APPLICATION, ANY WEBSITES OR SERVICES LINKED TO IT OR ANY CONTENT OR SERVICES ON THE APPLICATION OR SUCH OTHER WEBSITES OR SERVICES, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ROC-P WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ROC-P’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED (A) THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID TO ROC-P IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) IN THE EVENT YOU HAVE PAID NOTHING TO ROC-P IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, ONE-HUNDRED DOLLARS AND ZERO CENTS ($100.00).

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12. EXPORT REGULATION

The Application and Documentation may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application or Documentation available outside the US.

13. U.S. GOVERNMENT RIGHTS

Each of the Documentation and the software components that constitute the Application is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software documentation” and “commercial computer software” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you only receives those rights with respect to the Application and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government users and their contractors.

14. MISCELLANEOUS

(A) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa notwithstanding any conflict of law’s provisions. You irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the state and federal courts of Iowa located in Linn County (the “Iowa Courts”) for any litigation or controversy arising out of or relating to these terms, (ii) agree not to commence any litigation arising out of or relating to these terms except in the Iowa Courts and (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum.

(B) Entire Agreement. This Agreement and the Order Form, MSA, and any other exhibits or documents incorporated by reference, constitutes the sole and entire agreement between you and ROC-P with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the MSA, the Order Form, related exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the MSA, excluding its exhibits; (ii) second, the Order Form; (iii) third, any exhibits to the MSA as of the effective date of that document; (iv) fourth, this Agreement; and (v) fifth, any other documents incorporated herein by reference, including, without limitation, the ROC-P Terms and Conditions.

(C) Force Majeure. ROC-P shall not be responsible or liable to you, or deemed in default or breach hereunder, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond ROC-P’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(D) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this section).

(E) Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(F) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, 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. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(G) Assignment. You shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without ROC-P’s prior written consent, which consent ROC-P may give or withhold in its sole discretion. No delegation or other transfer will relieve you of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this section is void. ROC-P may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

(H) Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of any of your obligations under this Agreement would cause ROC-P irreparable harm for which monetary damages would not be an adequate remedy. You agree that, in the event of such breach or threatened breach, ROC-P shall be entitled to equitable relief, including a restraining order, an injunction, specific performance, each of which may be temporary or permanent, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.