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CFHP and OSP Terms & Conditions Agreement

BY CLICKING “I AGREE,” YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE THAT THE FOLLOWING TERMS AND CONDITIONS GOVERN THE CERTIFICATION EXAM, CERTIFICATION PROGRAM, CERTIFICATION DESIGNATION AND ANY SERVICES UNDER THIS FIBER-TO-THE-HOME PROFESSIONAL CERTIFICATION AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” AND DO NOT TAKE OR ACCESS THE CERTIFICATION EXAM MATERIALS. THIS AGREEMENT WILL BE EFFECTIVE WHEN YOU CLICK ON “I AGREE.”

This Agreement is entered into between Fiber Broadband Association, NA, a District of Columbia non-profit organization registered with the State of Washington (“FTTH”) and you (“You” or “Your”) as described below. By agreeing to this Agreement, You acknowledge that You have read and agree to the terms of Your participation in FBA’s fiber-to-the-home professional certification program (the “Certification Program”). If You do not agree to the terms of this Agreement, do not take the Certification Exam. The terms of this Agreement shall remain in force and apply to any Certification Exam(s) for which You have attained certification.

1. Definitions

(a) “Certification Designation” shall mean the specific Certification Program certification designation granted to You upon successful completion of and compliance with the Certification Requirements for the applicable fiber-to-the-home technology and installation techniques as specified in this Agreement.

(b) “Certification Exam” or “Test” shall mean the applicable certification test for the particular fiber-to-the-home technology and installation techniques for which You have registered.

(c) “Certification Program Website” shall mean the Certification Program website located at: www.fiberbroadband.org

(d) “Certification Requirements” shall mean those requirements specified and referenced in the Agreement that You must meet in order to use and maintain the Certification Designation and use the Logo in accordance with the terms of this Agreement.

(e) “Confidential Information” shall mean any information that relates to FBA’s Certification Exams and any communications by FBA that include information which has not been made available to the general public (including the language and content of exam questions and answers) disclosed to You by FBA. Confidential Information, however, does not include information that: (a) is now or subsequently becomes generally available to the public through no fault or breach on the part of You; (b) You can demonstrate to have had rightfully in Your possession prior to disclosure to You by FBA; (c) is independently developed by You without the use of any Confidential Information; or (d) You rightfully obtained from a third party who has the right to transfer or disclose it to You without limitation.

(f) “Logo” shall mean the specific Certification Program logo designated by FBA for one of the following Certification Designations You have earned: Certified Fiber to the Home Professional-CFHP and/or Certified Fiber to the Home Technician-CFHT.

2. Certification

(a) Certification Requirements.
In order to use the Certification Designation in accordance with the terms and conditions of this Agreement, You must:

(i) Pay the applicable Certification Exam fees;
(ii) Accept the terms and conditions of this Agreement before completing each Certification Exam;
(iii) Complete all required Certification Exam(s) with a passing percentage of 80% or greater;
(iv) Comply with any additional requirements specified on the Certification Program Website for the applicable Certification Designation;
(v) Keep contact information up to date with the Certification Program; and
(vi) Meet all of the Certification Program’s continuing certification requirements specified on the Certification Program Website for the applicable Certification Designation.

(b) Modification to Certification Requirements or the Certification Program.
FBA reserves the right to change the Certification Program, without cause or notice, including but not limited to changing Certification Requirements; specifying an expiration of any Certification Designation; changing recommended and/or required training courses; and changing test objectives, test content, test passing score, test item type, time allowed for test, and test delivery platform for any Certification Exam. Furthermore, FBA may, without cause or notice, require You to update Your Certification Designation by requesting You re-take any or all applicable Certification Exams and/or execute a new version of this Agreement with FBA. The most current Certification Requirements for Your applicable Certification Designation may be found on the Certification Program Website. You are solely responsible for keeping Yourself informed of FBA’s continuing Certification Requirements and for maintaining Your Certification Designation.

(c) Certification Title Grant.
Upon completion of the applicable Certification Requirements and Your receipt of the Certification Designation, and subject to the terms of this Agreement, FBA grants You a nonexclusive, nontransferable, nonassignable, nonsublicenseable, personal, revocable right to designate Yourself with the applicable Certification Designation. You may use that Certification Designation only to promote Your qualifications related to the applicable fiber-to-the-home technology and installation techniques applicable to the Certification Designation and for no other purpose.

(d) Ownership.
FTTH retains all rights, title and interest in and to all information, content and data contained in the Certification Exams and all copyrights, patent rights, trademarks and other proprietary rights thereto provided by FBA under this Agreement.

(e) Logo Rights and Restrictions.
Upon completion of the applicable Certification Requirements and Your receipt of the Certification Designation, and subject to the terms of the Agreement, FBA grants You a nonexclusive, nontransferable, nonassignable, nonsublicenseable, personal, revocable right to use the Logo on Your resume, business cards, marketing materials, letterhead and website solely in connection with Your provision of services in relation to the fiber-to-the-home technology or installation techniques for which You have a current, valid Certification Designation. You are granted no other right, title, or license to the Logo or any other FBA trademarks or logos.

Your use of the Logo is subject to the terms of this Agreement. You agree not to use the Logo in any manner that would diminish, tarnish or otherwise damage FTTH’s image or reputation, or the goodwill associated with the Logo. Upon request, You agree to promptly provide FBA at Your expense samples of any materials bearing the Logo. You agree not to file an application to register any trademark, service mark, or domain name for the Logo or any other mark confusingly similar to the Logo, and not to use FBA trademarks or potentially confusing variation of FBA trademarks as part of Your company name, product or service names, or domain names.

You agree that the Logo is owned solely and exclusively by FBA. You will not, at any time during the term or after the termination of this Agreement, register or attempt to register the Logo (or any mark confusingly similar thereto), or claim any interest in, contest the use of, or otherwise adversely affect the validity of the Logo anywhere in the world. You agree not to interfere with or bring any kind of action or legal or administrative proceeding in relation to the rights and title of FBA in or to the Logo or any other FBA trademarks or logos.

3. Term and Termination

Either party may terminate this Agreement at any time, with or without cause, by giving thirty (30) calendar days’ prior written notice to the other party. FBA may terminate this Agreement immediately, including termination and revocation of any Certification Designations to which this Agreement relates, and termination of Your use of the corresponding Logos, upon the occurrence of any one of the following events (each a “Cause”):

(i) You fail to comply with any of the terms of this Agreement, including, without limitation, the terms governing the use of the Certification Designation and Logos;
(ii) You misappropriate or disclose any trade secret or Confidential Information of FBA (including, but not limited to, any Certification Exams or Confidential Information with respect to which You are under obligation of confidentiality), or otherwise infringe any other intellectual property right of FBA, or engage in any other activities prohibited by law;
(iii) You fail to comply with the applicable continuing certification requirements for the relevant Certification Designation;
(iv) a government agency, regulatory agency or court finds that services You provided concerning the fiber-to-the-home services to which Your Certification Designation relates are defective in any way;
(v) FBA’s determination, in its sole discretion, that You cheated on any Certification Exam, have aided another in the cheating of a Certification Exam or have disclosed test questions of any Certification Exam to a third party; or
(vi) You misrepresent Your Certification Designation. In the event any of the above occurs, FBA may provide You with written notice of termination of this Agreement. Immediately upon termination of this Agreement, You shall immediately cease all use of any Certification Designation and Logo corresponding to the Certification Designation to which this Agreement relates. FBA's termination under this section shall not prejudice any rights FBA may have under this Agreement or in law, equity or otherwise. Sections 4(b), 5, 6, 7 and 10 shall survive termination of the Agreement for any reason.

4. Representations and Warranties

(a) By You.
You represent and warrant to FBA that all services You provide and all business You conduct involving Your Certification Designation shall:

(i) not harm the goodwill and reputation of FTTH;
(ii) not employ deceptive, misleading, or unethical practices;
(iii) not make any representations, warranties, or guarantees to customers on behalf of FBA;
(iv) comply with all applicable federal and local laws and regulations (including, but not limited to laws regulating Your professional status and licensing requirements and U.S. export regulations) and all other applicable governmental laws, statutes and regulations; and
(v) comply with all intellectual property and proprietary rights protections for any FBA products.

(b) Disclaimer.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, FTTH MAKES AND YOU RECEIVE NO WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATED TO OR ARISING IN ANY WAY OUT OF THIS AGREEMENT. FTTH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITYAND NON-INFRINGEMENT.

5. Indemnification

You agree to indemnify, defend and hold FBA harmless against any losses, liabilities, damages, claims and expenses (including attorneys’ fees and court costs) arising out of any claims or suits, whatever their nature and however arising, in whole or in part, which may be brought or made against FBA or its affiliates, officers, employees or assigns in connection with:

(i) any personal injury, property damage or other claim which are caused, directly or indirectly by any negligent act, omissions, illegal or willful misconduct of You,
(ii) Your use or misuse of the Certification Designation and/or the Logo;
(iii) Your use or misuse of FBA’s Confidential Information; and/or
(iv) Your breach of any obligations or warranties under this Agreement.

6. Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, FTTH’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNTS PAID BY YOU FOR THE CERTIFICATION EXAM. IN NO EVENT SHALL FTTH OR ANY AFFILIATE OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE OR SPECIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, CORRUPTION OF, OR COMPROMISE OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE CAUSED, ARISING FROM OR RELATED TO THE CERTIFICATION PROGRAM, YOUR CERTIFICATION DESIGNATION, FAILURE TO ACHIEVE CERTIFICATION DESIGNATION, OR USE OF OR INABILITY TO USE THE LOGOS, OR ARISING FROM OR RELATED TO THE TERMINATION OR REVOCATION OF YOUR CERTIFICATION DESIGNATION, EVEN IF FTTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Confidentiality

Anyone obtaining access to the Certification Exams or Confidential Information is obligated to maintain the confidentiality of this information. If an individual is caught violating the terms of this provision that individual will be permanently ineligible for any Certification Designation and FBA will revoke any existing Certification Designations held by that individual. You agree to protect the Confidential Information, using at least the same degree of care that You use to protect Your own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. You agree to use the Confidential Information for the sole purpose of evaluation in connection with purpose of this Agreement. You will not disclose, publish, or disseminate Confidential Information. You may disclose Confidential Information to the extent required by law, provided You make reasonable efforts to give FBA notice of such requirement prior to any such disclosure and take reasonable steps to obtain protective treatment of the Confidential Information. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby and FBA retains all of its right therein.

8. Relationship of the Parties

You acknowledge that nothing in this Agreement shall be construed as creating a partnership, joint venture or agency relationship between You and FBA or as granting a franchise. You shall not advertise, promote, or suggest in any manner that the services being provided to customers in connection with the Logos and Certification Designation are provided by, sponsored by, or associated in any way with FBA, or that You are employed by, affiliated with, or sponsored by FBA, except to state that You have successfully completed all requirements for Your particular Certification Designation(s), including having successfully passed any applicable Certification Exam(s) and any continuing certification requirements. During the term of this Agreement, You shall insert the following language in each contract pursuant to which You will provide services involving the Certification Designation: “FBA is not a party to this Agreement and shall have no liability whatsoever with respect to any of the services that are the subject of this contract. Each applicable Certification Designation indicates that I have successfully completed the corresponding Certification Requirements. The services I provide under this contract are not provided, licensed, warrantied or sponsored by FBA.”

9. Governing Law

This Agreement and any claim, controversy or dispute arising under or related to the Agreement, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties of the parties will be governed by the laws of the District of Columbia without regard to any conflicts of law principles.

10. General

You may not assign Your rights or obligations under this Agreement. Any unauthorized assignment will be void. FBA will not be liable for performance or delays beyond its reasonable control. A waiver of any breach or default under this Agreement shall not constitute a waiver of any subsequent breach or default. If a court of competent jurisdiction holds that any provision of this Agreement is invalid or unenforceable, the remaining portions will remain in full force and effect, and the parties will replace the invalid or unenforceable provision with a valid and enforceable provision that achieves the original intent of the parties and the economic effect of the Agreement. This Agreement, including any additional terms referenced herein, constitutes the entire agreement between FBA and You with regard to the Certification Program and any Certification Designation and supersedes all prior negotiations, agreements, and understandings with respect to the subject matter, and no addition to or deletion from or modification of any of the provisions hereto shall be binding upon FBA unless made in writing and signed by an authorized representative of FBA. Any term or condition on any other document submitted by You shall be of no force or effect whatsoever and is specifically rejected. FBA reserves the right to change this Agreement at any time and without notice. Notices of changes to the Agreement will be given by FBA posting the changes on the Certification Program Website and will be deemed given when posted. You will have a commercially reasonable time to implement such changes by FBA, not to exceed thirty (30) days.

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