For purposes of these Terms, “you” includes, individually and collectively, an individual user, an institutional user, or an authorized user of an institutional user that is purchasing, viewing, using, or accessing the DOLFIN™ Site and other subscription, membership, and certification services and features (the “Service(s)”), at dolfin.k2integrity.com (the “Site”). You acknowledge and agree that by (i) visiting, viewing, using, or accessing the Site, (ii) clicking “Agree”, “Register”, “Order” “Submit”, or similar links, or (iii) signing or confirming registration of the User Account, any Purchase Order or any other agreement incorporating these Terms, that you have read, understand, and agree to be bound by these Terms and will not use the Site in a way that violates any laws or regulations. To the extent the terms of a separate written services agreement or consulting agreement between a user and the Company directly conflict with any provisions of these Terms, the terms set forth in such other agreement will control.
- Site Access. Subject to your ongoing compliance with these Terms and any other applicable requirements stated on the Site, the Company hereby grants to you permission to use the Site for your internal business purposes to (as applicable): (i) access and browse the Site, including written materials, podcasts, webinars, courses, E-Learning Plans, exams, and videos; (ii) register, log into, purchase and use the Services; and (iii) interact with the Company’s team through FINQuiry.™ For an institutional user, the Company will create Business User Accounts allowing authorized personnel of such institutional user to access and use the Site, subject to that authorized user’s ongoing compliance with these Terms and any additional provisions contained in an agreement between the Company and the institutional user.
- Account Registration; User Account. To access the Site, an individual user will be asked to register and provide us with personal information including his or her full legal name, residential address, and email address and will choose a username and password for his or her account (the “Individual User Account”). To create a Business User Account, the institutional user will need to provide us with certain information including the full legal name and address of the institutional user. Authorized users of institutional users will be asked to click on the “First Time Logging In” link on the Site and set their password (the “Business User Account”). The Individual User Account and Business User Account are generally and collectively referred to in these Terms as “User Account”.
- Security. You must ensure that your email address is, and remains, valid. You are solely responsible for maintaining the confidentiality of your username and password and any other piece of information you provide to us as part of our security procedures (collectively, “Account Information”). You must not disclose it to any other individual or entity, as contemplated by these Terms. If your username or password is lost or stolen, or if you believe that your User Account has been accessed by unauthorized third parties, you are advised to notify the Company in writing, and should change your password at the earliest possible opportunity. You will remain responsible for all use of your username and password, and all activity emanating from your User Account, whether or not such activity was authorized by you. The Company shall not be liable for any loss or damages arising from your failure to maintain the security and confidentiality of your User Account. We reserve the right to, with or without prior notice, suspend or terminate your User Account if activities occurring thereon, in our sole discretion, would or might constitute a violation of these Terms, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.
- License. The Company grants you a paid-for, limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to access and use the Site, and to view or listen to written and video content, and podcasts, including webinar content streamed from the Site, subject, in each case, to the territorial availability of that feature and content (the “License”). Except as stated herein or as otherwise provided in a separate written agreement between the institutional user and the Company, you have no right to copy, download, display, perform, reproduce, distribute, modify, edit, alter, or enhance any of the materials in any manner.The License allows a single individual, or a specific number of designated employees or agents of an institutional user, to register and receive access to the Site. If you are the authorized personnel of an institutional user, you acknowledge and agree that each Business User Account created by the Company for such institutional user is specific to the designated individual employee or agent of such user. You may not share your Account Information with any third parties or, if applicable, other employees, affiliate employees, contractors or agents of the institutional user you represent.
- Use Restrictions. Except as expressly stated herein or as otherwise provided in a separate written agreement between you and the Company, you agree not to use this Site to:
- copy, rip or capture, or attempt to copy, rip or capture, any audio content from any part of the DOLFIN Site;
- adapt, copy, republish, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any content from the Site;
- upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data;
- harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
- interfere with, disrupt, or create an undue burden on servers or networks connected to this Site or violate the regulations, policies or procedures of such networks;
- attempt to gain unauthorized access to this Site, other computer systems or networks connected to or used together with this Site, through password mining or other means;
- alter or remove, or attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Site;
- sell or transfer, or offer to sell or transfer, your User Account to any third party without the prior written approval of the Company.
You agree to comply with the above conditions at any and all times during your use of the Site, and acknowledge and agree that the Company has the right, in its sole discretion, to terminate your User Account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms. This may include taking court action and/or reporting offending users to the relevant authorities.
- Fees. The Company’s grant of the License and related Services is expressly conditioned on timely payment of the relevant fees in advance for your Individual User Account, or timely payment by the institutional user for all Business User Accounts, as applicable (the “Fees”).
8.1. To the extent you are based in the United States, amounts payable do not include any applicable sales, use, ad valorem or similar taxes (each, a “Tax” and collectively, “Taxes”) regardless of the taxing authority. To the extent the Company is required by law to collect such Taxes, one hundred percent (100%) of such Taxes shall be added to invoices as separately stated charges and paid in full by you in accordance with the applicable agreement.8.2. To the extent you are based outside of the United States, amounts payable do not include any applicable Taxes (as defined above, and which for the purposes of this Section 8.2, shall include VAT) regardless of the taxing authority. You are solely responsible for the reporting and filing of such Tax.
- Transaction Processing. By registering for, subscribing to, or purchasing the Services and providing billing information you grant our authorized third-party payment processor the right to process payment for the Fees. For each purchase you make, you will be charged on an automatic and recurring basis, in advance of each subscription and/or membership period (the “Term”).
- Suspension Because of Nonpayment. If payment is not received within the required time period, we may suspend your access to the Site until payment is received. In the event we suspend your access because of nonpayment, no additional time will be added to the term of the applicable Services.
- Refund Policy. Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.
Rescheduling, cancellation, or failure to take the Certification Exam (“Exam”) within the six-month (6) time period will not generate a refund. The candidate can reschedule the Exam for a date outside the original six-month period for a fee. The certification fee is not refundable and not transferable.
11.2. Individual User Account – Termination by User. An Individual User Account may be cancelled at any time via your User Account settings page or by emailing email@example.com. If you terminate your Individual User Account by any method, your Individual Membership and/or Subscription will remain active to the end of your then-current term to the extent your individual Fee is paid. These Terms will continue in effect and will govern until its expiration or earlier termination for cause. We will not offer refunds on any fees or charges related to your Individual Membership and/or Subscription—this includes any partially used or unused periods for which you have already paid. Your obligation to pay fees continues through the end of the Term during which you cancel your Membership and/or Subscription.
11.3. Termination of Business User Account. An institutional user that has purchased a Membership and/or Subscription for its employees or agents, or the Company, may terminate the Business User Account or any Purchase Order prior to its expiration on the terms described in the written agreement between the parties. To terminate any Business User Account and revoke access for individual employees, the institutional user shall notify the Company by calling +1.202.558.0960, or by emailing firstname.lastname@example.org.
- Your Marks. You agree that the Company may use your logo and name for informational purposes only in marketing efforts, solely for the purpose of identifying you as a customer of the Company, and for no other purpose.
- Intellectual Property. All the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in this Site are owned by the Company or its licensors. All Company marks and logos are service marks and trademarks of the Company. The provision of this Site does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights, except as otherwise set forth in a separate written agreement between you and the Company. The Company reserves all rights not granted in these Terms.
13.1. Equitable Relief. You acknowledge that a breach of any proprietary rights described in these Terms may cause us irreparable damage, for which the award of damages would not be adequate compensation. Consequently, you agree that we may institute an action to enjoin you from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and we may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.
- Representations and Warranties. You represent and warrant that: (a) in case of an Individual User, you are (i) 18 years of age, and (ii) are fully able and competent to form a binding contract with the Company by entering into these Terms; and (b) in the case of an Individual User or a Business User, you are solely responsible for all service and data charges, and other fees and costs associated with your access to and use of the Site, including without limitation maintaining all internet, browser software and extensions, computer hardware, telephone, and other equipment required for such access.
Further, you represent and warrant on a continuous basis that (a) all information provided by you to the Company is complete and accurate, and you acknowledge that the Company may rely on it in determining whether to provide access to the Site; (b) you will provide timely updates to your information during the Term; and (c) the Company’s receipt and use of your information for the License will not contravene any law or regulatory obligation.We represent, warrant, and covenant to you that: (a) we have and will have all rights, titles, licenses, intellectual property, permissions and approvals necessary in connection with our performance under these Terms to grant you the License and rights granted hereunder; and (b) neither the Site (including FIN Library™), nor the provision or utilization thereof as contemplated under these Terms, will infringe, violate, trespass or in any manner contravene or breach or constitute the unauthorized use or misappropriation of any intellectual property of any third party.
14.1 Authority. You and the Company each represent, warrant, and covenant that it has the full power and authority to: (a) enter into an agreement subject to these Terms; (b) perform its obligations hereunder, and that its performance hereunder does not conflict with, limit, or contradict any other agreement; (c) and that by so doing, it does not violate any applicable laws or any contractual relationship.
- Availability of Site; Acts of God. You recognize that the traffic of data through the Internet may cause delays during your use of or access to the Site, and accordingly, you agree not to hold us liable for delays that are ordinary in the course of Internet use. You further acknowledge and accept that the Site may not be available on a continual 24-hour basis due to such delays, delays caused by our upgrading, modification, or standard maintenance of the Site, or any other delays outside of our control.The Company shall not be liable for any failure or delay in the performance of its obligations relating to the Site due to causes beyond its reasonable control, including but not limited to break-down of the Internet or this Site, war, terrorism, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or other act of God.
- Legal Disclaimer. Our Site might provide legal and compliance information and content. The Company and its Affiliates are not legal organizations or law firms, and nothing contained in our DOLFIN Resource Center,™ Training Center,™ and Community Center,™ or otherwise on this Site or otherwise provided by the Company should be construed as legal advice or counsel. The information, reports, articles, and training videos and materials that are found on or available through this Site are not legal advice and should not be interpreted as a substitute for consultation with a licensed legal professional.
The Company does not represent or endorse any third parties or the methods that they use to arrive at their conclusions. All information provided through the Site is for illustrative purposes only and does not constitute a guarantee or representation of any aspect of such information by the Company. The Company does not make any warranty or representation with respect to the accuracy or completeness of any such information.
YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE OR ITS CONTENT. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- Indemnification. You agree to defend, indemnify and hold harmless the Company, its members, managers, officers, employees, licensors, independent contractors, providers, subsidiaries, and Affiliates, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (each, a “Company Indemnitee”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) (hereinafter, the “Claims”) arising out of or relating to (i) your violation of these Terms; (ii) any use by you of the Site’s material, content, services, or products other than as expressly authorized in these Terms; or (iii) your use of any information obtained from the Site. You agree to cooperate as fully as reasonably required in the defense of any Claims, including asserting any available defenses. We reserve the right, at our own expense, to assume the exclusive defense and control of any Claims or matter otherwise subject to indemnification by you and you may not in any event settle any Claims without our prior written consent.
- Limitation of Liability. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DAMAGES OR INJURIES WHATSOEVER ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS SITE, ANY WEB SITES LINKED TO THIS SITE, OR THE MATERIALS OR INFORMATION OR SERVICES CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- Limitation of Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL THE COMPANY’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES YOU HAVE PAID TO THE COMPANY FOR ACCESS THE SITE IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO LIABILITY ARISING.
(b) Non-Waiver. Failure by the Company to enforce any provision(s) of these Terms will not be construed as a waiver of any provision or right.
(c) Severability. If any provision of these Terms is found to be illegal, void, or unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions of these Terms.
(e) Dispute Resolution. Should any dispute arise with regard to these Terms, the parties agree to first work in good faith to resolve such dispute, and neither party may commence any action with regard to such dispute until thirty (30) days have passed from the time such party has provided written notice to the other party of the nature of such dispute, provided that nothing herein will prevent us from seeking injunctive relief in the event of your actual or threatened breach of any terms of these Terms or bringing issues to the attention of federal, state, or local agencies.
(f) Arbitration. Any dispute or claim relating in any way to your use of this Site will be resolved by binding arbitration conducted under the Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”). You and the Company agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at https://adr.org/
(g) Notice. Except as otherwise provided in these Terms, any notices or other communications contemplated or required under these Terms, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to you will be sent to the address set forth in your User Account; notices to the Company shall be sent to K2 Integrity, 845 Third Avenue, New York, NY 10022 Attn: General Counsel. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
(h) No Agency. Nothing in these Terms will be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor, or employee of the other.
(i) Assignment. We may freely transfer or assign any portion of our rights or delegate our obligations under these Terms. You may not assign or otherwise transfer your rights, obligations, or duties under these Terms, in whole or in part, without our prior written consent, in our sole discretion. Any attempted transfer or assignment of these Terms without the prior written consent of the Company will be null and void. These Terms will be binding upon and will inure to the benefit of the permitted successors and assigns of each party thereto.
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