Terms Of Service

 

1.1  Access Grant.  Subject to the terms and conditions of this Agreement, Company hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicensable right to (a) access and use the Company Service during the Term (as defined below), and (b) use the training content, courseware, or materials provided via the Company Service (the “Training Content”) solely for Customer’s internal business purposes.  Unless the applicable Order Form provides for single sign-on (“SSO”) integration or otherwise, Company will provide Customer with username(s) and password(s) pursuant to which Customer and its Named Users may access the Company Service.  Company will be provided with, and may only access the Company Service through, the user logins assigned to or created by Customer.  

 

1.2 Restrictions and Responsibilities.  Customer will cooperate with Company by making available such personnel and information as may be reasonably required in connection with the performance of this Agreement, including for launch of the Company Service.  Customer will not use the Company Service for any purpose other than the purposes expressly set forth herein.  Customer may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, documentation, data, or underlying structure, ideas, know-how or algorithms relevant to the Company Service; (b) copy, distribute, modify, translate, or create derivative works based on, the Company Service or Training Content (except to the extent expressly permitted by Company); (c) use the Company Service or Training Content for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels, or (e) otherwise access or use the Company Service or Training Content in a manner inconsistent with this Agreement or applicable laws, rules, and regulations.  Customer acknowledges that by issuing usernames and passwords for its authorized Named Users, Customer controls, defines and manages access to the data that will be used by Customer and its Named Users within the Company Service.  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.  Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer).  Customer will inform Company immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Company Service.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Company may immediately suspend Customer’s access to the Company Service if Customer is in breach of any term or condition of this Agreement.

 

1.3 License to Customer Data and Usage Data. Customer hereby grants to Company: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers), transferable right and license to copy, distribute, display, create derivative works of, anonymize, collect, analyze, and otherwise use (i) the electronic data or information submitted or uploaded by Customer and Named Users in connection with Customer’s or Named Users’ use of the Company Service (including through a Third Party Service, as defined below), and (ii) training content developed by Customer or otherwise provided by Customer through the Company Service ((i) and (ii), the “Customer Data”) and data derived therefrom, solely to exercise its rights and perform its obligations under this Agreement.  Company will logically separate Customer’s training content included in the Customer Data from Company’s other customer accounts and Company will not reuse, reference, or repurpose such training content for other customers or third party purposes.  Customer understands and agrees that Company may use cookies, web beacons and/or other technologies to collect (a) data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies and (b) certain Customer Data and data derived therefrom and collected passively using various technologies, which data may include, among other things, Customer’s or a Named User’s IP address, pages viewed by Customer or a Named User, date and time and domain type (including, by way of example, the total number of concurrent users of the Company Service, the number of visitors to each area or interactive object within the Company Service, and the domain names of any visitors’ internet service providers), ((a) and (b) collectively, “Usage Data”), which Company may store in databases owned and maintained by Company, Company’s affiliates, and/or and their service providers.  Customer hereby grants to Company a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers), transferable right and license to copy, distribute, display, aggregate, and create derivative works of and otherwise use Usage Data for Company’s business purposes; provided, that, Company may only share Usage Data with third parties to the extent such Usage Data is aggregated and/or anonymized such that the identity of Customer and/or its individual Named Users cannot be determined by such third parties.  Except as expressly set forth herein, no rights or licenses are granted by either Party under this Agreement, whether by implication, estoppel or otherwise.

 

1.4 Feedback.  Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Company Service.  Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants to Company a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.  Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).

 

1.5 Third Party Services.  The Company Service may enable access to or integration with certain third party services, products, solutions, software, application programming interfaces and/or other technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party, including Customer’s learning management system (collectively, the “Third Party Services”).  The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services.  Some Third Party Services may provide Company with access to certain information that Customer has provided to such Third Party Services.  Any data, information or other materials related to Customer collected via or received by Company from any Third Party Service will be deemed Customer Data. Company has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services.  Company will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.  Any dealings Customer has with third parties while using the Company Service are between Customer and the third party.  Company is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.

 

2 COMPANY SERVICE AND CUSTOMER DATA OWNERSHIP; RESERVATION OF RIGHTS; PUBLICITY.  

 

2.1 Company Service.  Customer acknowledges and agrees that, as between the Parties, Company and/or its licensors retains all right, title and interest in and to the Company Service, Training Content, any software, applications, inventions or other technology developed in connection with Professional Services or other support of the Company Service, and all associated intellectual property rights.  Without limiting the foregoing, Company retains the right to resell, distribute, or otherwise commercially use any Training Content it develops in connection with the Company Services, provided that such Training Content does not contain or reference Customer’s Confidential Information or Customer Data, and does not identify Customer.  Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Service.  Customer will acquire no right, title, or interest in and to the Company Service other than the limited licensed rights expressly granted under this Agreement.  Notwithstanding the foregoing, except for the limited rights expressly granted to Company under this Agreement, Customer retains all right, title and interest in and to the Customer Data.  

 

2.2 Publicity.  Except as permitted herein, neither Party may use the other Party’s name or marks in any advertising, written sales promotion, press releases, website and/or other publicity matters without the other Party’s prior written consent.  Once approved, either Party may re-use, re-publish, or otherwise disseminate any previously-approved statement or content for publicity in any other forum, medium, or channel.  Customer hereby grants Company the right to use, disclose, reference, and publicize Customer’s name, logo, and description of business in its external marketing material and its website to identify Customer as a client of Company, provided that such statements are accurate and not misleading or disparaging.

 

 

3.1 Professional Services.  From time to time, Customer may engage Company to perform custom setup, implementation, consulting and other professional services related to Customer’s use of the Platform ( “Professional Services”).  The Professional Services will be set forth in a separate Order Form or Order Form addendum, which expressly incorporates this Agreement by reference, is governed by this Agreement, and is signed by an authorized representative of each Party (each, a “Services Order”).  Each Services Order will include a description of the Professional Services, a schedule of payments and payment terms, if applicable, and any other mutually agreed upon terms and conditions related to the performance of such Professional Services.

 

3.2 Company Obligations.  Company will (a) use commercially reasonable efforts to perform and complete the Professional Services in accordance with this Agreement and the applicable Services Order and (b) provide suitably trained and skilled personnel to provide the Professional Services.

 

3.3 Customer Obligations.  Customer understands that Company’s performance of Professional Services is dependent in part on Customer’s actions.  Accordingly, Customer will provide Company with any necessary items and assistance in a timely manner, including any items and assistance identified in the applicable Services Order.  Any dates or time periods relevant to performance by Company under any Services Order will be appropriately and equitably extended to account for any delays due to Customer.

 

 

4.1 Fees.  Customer will pay to Company any fees set forth on the Order Form in accordance with the terms and conditions set forth herein.  Payment obligations are non-cancelable and fees paid are non-refundable.

 

4.2 Payment Terms.  Unless otherwise stated in the Order Form, Company will provide an invoice to Customer for any fees due to Company.  Customer will pay all fees to Company within thirty (30) days of receipt of any such undisputed invoice.  Except as otherwise specified in the applicable Order Form, payment must be made by wire transfer, credit card, or automated clearing house (ACH).  Customer hereby authorizes Company to bill its payment instrument in advance on a periodic basis in accordance with the terms of the applicable Order Form during the Term, and Customer further agrees to pay any charges so incurred.  If payment is made by credit card, Customer agrees to pay any associated processing fees, which will be disclosed in advance.  If payment of any fees are not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law.  Customer will be responsible for all expenses of collection incurred by Company in connection with any overdue amounts.  If Customer believes in good faith that any invoiced amount is incorrect, Customer must notify Company’s customer support department promptly following receipt of the applicable disputed invoice.  In addition, and with prior notice to Customer with the ability to cure, if any past due payment has not been received by Company within fifteen (15) days from the time such undisputed payment is due, Company may suspend access to the Company Service until such payment is made.

 

4.3 Net of Taxes.  All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company.  Customer will not withhold any Taxes from any amounts due Company. 

 

 

5.1 Term; Termination.  Subject to earlier termination as set forth in this Agreement, the term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form, and shall automatically renew for additional one (1) year periods, unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (together with the initial term, the “Term”).  In addition, a Party may terminate this Agreement immediately if the other Party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.  

 

5.2 Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights with respect to the Company Service will immediately terminate, and Customer will (a) cease use of the Company Service; (b) return to Company or destroy, in Company’s sole discretion, all copies or other embodiments of Company’s Confidential Information; and (c) pay to Company all amounts due and owing under this Agreement. Upon expiration or termination of this Agreement, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days following the effective date of expiration or termination. After such thirty (30) day period, Company may, but is not obligated to, delete any stored Customer Data.

 

5.3 Survival.  Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.3 (License to Customer Data and Usage Data), 1.4 (Feedback), 2 (Company Service and Customer Data Ownership; Reservation of Rights; Publicity), 4 (Fees; Payment Terms), 5 (Term; Termination), 6 (Confidentiality), 7.2 (Disclaimer), 8 (Limitations of Liability), 9 (Indemnification) and 11 (General) will survive.

 

6 CONFIDENTIALITY. 

 

6.1 Definition of Confidential information.  “Confidential Information” means, subject to the exceptions set forth in Section 6.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 6.2 hereof.  For the avoidance of doubt, the Company Service is Confidential Information of Company.

 

6.2 Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.

 

6.3 Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement. 

 

6.4 Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.

 

7 REPRESENTATIONS AND WARRANTIES; DISCLAIMER. 

 

7.1 Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.  Customer represents and warrants that it (i) has all rights necessary to grant Company the rights to use the Customer Data and Usage Data as contemplated hereunder, and (ii) will use the Company Services only in compliance with Company’s standard published policies as provided to Customer from time to time, which are hereby incorporated by reference into this Agreement, and all applicable laws, rules, and regulations.  Customer is solely responsible for ensuring the Training Content and any training content included in the Customer Data satisfies Customer’s training program requirements and applicable laws, rules, and regulations.  Although Company has no obligation to monitor Customer’s use of the Company Services or Training Content, Company may do so and may prohibit any use of the Company Services it believes may be (or alleged to be) in violation of the foregoing.  Company represents and warrants that it will perform Professional Services in a professional and workmanlike manner, and Company will use reasonable efforts consistent with prevailing industry standards to maintain the Company Service in a manner which minimizes errors and interruptions.  Notwithstanding the foregoing, the Company Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

 

7.2 Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY SERVICE AND THE TRAINING CONTENT ARE PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE COMPANY SERVICE OR TRAINING CONTENT, OR THAT THE COMPANY SERVICE IS ERROR-FREE OR THAT OPERATION OF THE COMPANY SERVICE WILL BE SECURE OR UNINTERRUPTED.  CUSTOMER ACKNOWLEDGES THAT THE TRAINING CONTENT AND ANY INFORMATION CONTAINED IN THE TRAINING CONTENT OR ANY COMMUNICATIONS PROVIDED TO CUSTOMER DURING USE OF THE TRAINING CONTENT WILL BE TRANSMITTED OVER A MEDIUM THAT IS BEYOND THE CONTROL AND JURISDICTION OF COMPANY AND ITS LICENSORS AND MAY BE SUBJECT TO LIMITATIONS, DELAYS, LATENCY ISSUES, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY IS NOT RESPONSIBLE FOR AND ASSUMES NO LIABILITY FOR ANY DELAYS, DELIVERY FAILURES, CORRUPTION OF ANY DATA OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 

 

 

8.1 Disclaimer of Consequential Damages.  EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.  

 

8.2 General Cap on Liability.  EXCEPT FOR (A) CUSTOMER’S PAYMENT OBLIGATIONS IN SECTION 4 OR BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 9.1 AND 9.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.  

 

8.3 Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

 

 

9.1 Indemnification by Company.  Company will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Company Service infringes any United States copyright (except for claims for which Company is entitled to indemnification under Section 9.2, in which case Company will have no indemnification obligations with respect to such claim). Company will have no liability or obligation under this Section 9.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Company Service by any party other than Company; (b) the combination, operation, or use of the Company Service with other product(s), data or services where the Company Service would not by itself be infringing; or (c) unauthorized or improper use of the Company Service.  This Section 9.1 states Company’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

 

9.2 Indemnification by Customer.  Customer will indemnify, defend and hold Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Company Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) Company’s use of the Customer Data and Usage Data as authorized in this Agreement or (b) any use by Customer of the Company Service or Training Content in violation of this Agreement. 

 

9.3 Action in Response to Potential Infringement.  If the use of the Company Service by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (a) procure for Customer the right to continue using the Company Service as set forth hereunder; (b) replace or modify the Company Service to make it non-infringing so long as the Company Service has at least equivalent functionality; (c) substitute an equivalent for the Company Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.

 

9.4 Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

 

10 GOVERNMENT MATTERS.  Customer may not remove or export from the United States or allow the export or re-export of the Company Service or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Company Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

 

11 GENERAL.  The terms and conditions of this Agreement are severable.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Neither Party may assign this Agreement without the other Party’s prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise.  Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement and the Order Form are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Order Form, the terms of this Agreement will prevail, unless the Order Form expressly amends a provision in this Agreement.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.  All notices under this Agreement will be in writing and sent to the recipient’s address set forth above and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).  Delays in performing obligations due to a Force Majeure Event (excluding payment obligations) will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.  Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party.  This Agreement will be governed by the laws of the State of Georgia without regard to its conflict of laws provisions.  Customer acknowledges that any unauthorized use of the Company Service will cause irreparable harm and injury to Company for which there is no adequate remedy at law.  In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Company will be entitled to injunctive relief in the event Customer uses the Company Service in violation of the limited licenses and rights granted herein or uses the Company Service in any way not expressly permitted by this Agreement.  In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  This Agreement may not be amended in any respect other than by written instrument executed by the party against whom enforcement is sought.