WHEREAS, Provider has developed the Brilliant Career™ online outplacement courses for Customer’s departing employees in order to help Authorized Users learn new skills, achieve measurable objectives, and find suitable employment; and
WHEREAS, Customer desires to access and use Courses using Provider’s Platform Services, and Provider is willing to permit Customer to access and use the Platform Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
- DEFINITIONS. As used herein:
“Authorized User” means an employee, contractor or enrollee of Customer that has (i) been assigned a unique username-password combination to access and use the Platform Services, and (ii) registered online to access and use the Platform Services.
“Courses” means all content, modules, resources, documents, and other course materials, developed and provided by Provider under this Agreement either using the Platform Services, on CD, by email, or otherwise in digital or print form for use by Authorized Users.
“Intellectual Property Rights” means any intellectual property in any jurisdiction throughout the world, including any (i) trademarks, service marks, Internet domain names, logos, trade dress, trade names, and any other indicia of source, and all goodwill associated therewith and symbolized thereby; (ii) patents, patent applications and patent disclosures, and inventions and discoveries (whether patentable or unpatentable); (iii) processes, technologies, trade secrets, and know-how; (iv) copyrights and copyrightable works, moral rights, and mask works; (v) software and software systems (including data, source code, object code, databases and related items such as documentation); and (vi) registrations and applications for any of the foregoing.
“Order Form” means any purchase order, ordering document or other ordering document which specifies details about the Services, Authorized Users, Fees and any other details relating to the Services agreed to by the parties.
“Platform Services” means the Courses provided to Authorized Users per the Order Form and the platform for accessing the same located at: http://www.accelerateleadership.org/brilliant-career. The Platform Services include live and recorded coaching and training provided via internet video communications.
“Customer Data” means all data and information input or submitted by Customer or Authorized Users into the Platform Services including without limitation, the course materials, assignments, projects, tests, and other content.
PLATFORM SERVICES
2.1 Platform Services. Subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, Customer and its Authorized Users may access and use the Platform Services solely for Customer’s internal business purposes as part of the Courses and such access and use is expressly limited to the number of Authorized Users that Customer is authorized to grant access to in accordance with the applicable Order Form. Customer understands and agrees that the Platform Services are separate and distinct from the Customer Data and Provider is not responsible for the Customer Data and disclaims all liability with respect to use of such Customer Data.
2.2 Restrictions. Customer will not attempt to interfere with or disrupt the Platform Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Platform Services). Customer will not allow access to or use of the Platform Services by anyone other than Authorized Users. Customer will not (and will not allow or enable anyone else to): (i) copy, modify or distribute any portion of the Platform Services; (ii) redistribute, rent, lease, or provide access to the Platform Services, including, without limitation, on a time-share or service bureau basis; (iii) reverse engineer, decompile or disassemble any part of the Platform Services; or (iv) transfer any of its rights hereunder.
2.3 Acceptable Use Policies. Customer will not use the Platform Services in any way, or post, upload, publish, submit or transmit any Customer Data, that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity, privacy or confidentiality; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against others; or (vi) promotes illegal or harmful activities or substances. Notwithstanding the above, Customer acknowledges and agrees that Provider does not monitor or police communications, data or Customer Data transmitted through the Platform Services and that Provider will not be responsible for the content of any such communications or transmissions. Customer and its Authorized Users will use the Platform Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer and its Authorized Users will not use the Platform Services to transmit any bulk unsolicited commercial communications. Customer will keep confidential and not disclose to any third parties, and will ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles.
CUSTOMER OBLIGATIONS
3.1 Marketing Support. Customer grants to Provider a non-exclusive, non-transferable (except as permitted under Section 11.6), limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials and on Provider’s website, to show that Customer is a customer of Provider; provided that such use is in accordance with Customer’s trademark and logo use guidelines provided to Provider.
3.2 Enforcement. Customer will ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 2.2 and 2.3. Customer will promptly notify Provider of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Provider with respect to: (i) investigation by Provider of any suspected or alleged violation of this Agreement, and (ii) any action by Provider to enforce the terms and conditions of this Agreement. Provider may suspend or terminate any Authorized User’s access to the Platform Services upon notice to Customer in the event that Provider reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Customer will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. Customer will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
3.3 Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Platform Services is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Platform Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Provider will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
3.4 Customer Data Representations. Customer is solely responsible for all the Customer Data. Customer represents and warrants to Provider that: (i) it has all rights, power and authority that are necessary for Customer’s use of the Customer Data as contemplated by this Agreement; (ii) neither the Customer Data, nor the use and provision of the Customer Data to be made available through the Platform Services, nor any use of Customer Data by Provider on or through the Platform Services will infringe, misappropriate or violate a third-party’s intellectual property rights, or rights of publicity, privacy or confidentiality, and (iii) Customer’s use and provision of Customer Data to Provider under this Agreement will not breach any agreement between Customer and any third party or violate any applicable local, state or federal laws, regulations, orders or rules.
FEES AND TAXES. In consideration of providing the Platform Services, Customer will pay Provider the fees, in accordance with the terms and as set forth in the applicable Order Form that references this Agreement (“Fees”). All amounts and fees stated or referred to in this Agreement (including each Order Form) are exclusive of taxes, duties, levies, tariffs, and other governmental charges, including, without limitation, VAT (collectively, “Taxes”). Customer will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Provider’s net income.
OWNERSHIP
5.1 Provider. As between Provider and Customer, the Platform Services, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Provider or its licensors.
5.2 Customer. Provider acknowledges that, as between Customer and Provider, Customer owns all worldwide right, title and interest in and to all Customer Data and Provider will not obtain any ownership rights or interests in such data. Customer hereby grants to Provider a non-exclusive, transferable, sublicensable, royalty-free, worldwide license to use, copy, modify, publicly display, publicly perform and distribute the Customer Data as is necessary to provide the Platform Services to Customer and its Authorized Users. Notwithstanding the above, the parties agree that Provider owns all rights in and to any aggregated, non-identifiable data that it develops or creates based upon the Customer Data stored on its system (“Aggregate Data”) and will use this Aggregate Data for, without limitation, data analytics purposes.
CONFIDENTIALITY
6.1 Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity: (i) Customer Data is not considered to be Confidential Information of Customer (provided however that the user names, log in credentials and personally identifiable information of Authorized Users is Customer Confidential Information), (ii) the Courses, Platform Services and all Intellectual Property Rights embodied therein are Provider’s Confidential Information, and (iii) the terms of this Agreement constitute Confidential Information of both parties.
6.2 Exclusions. The obligations and restrictions set forth in Section 6.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
6.3 Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 6.3 will remain in effect during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement.
6.4 Permitted Disclosures. The provisions of this Section 6 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
WARRANTY. THE PLATFORM SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED AND PROVIDER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, IN CONNECTION WITH THE PLATFORM SERVICES. WITHOUT LIMITING THE FOREGOING, PROVIDER DISCLAIMS ANY WARRANTY THAT THE PLATFORM SERVICES WILL BE ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE USE OF THE PLATFORM SERVICES WILL BE UNINTERRUPTED. PROVIDER FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PLATFORM SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR AGAINST HIDDEN DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW. PROVIDER FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
TERM AND TERMINATION
8.1 Term. This Agreement will commence on the Effective Date and will continue for a period of one (1) year unless terminated earlier as provided in this Agreement (the “Term”).
8.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment will be five (5) business days.
8.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and Authorized Users’ right to access and use the Platform Services will immediately terminate, Customer and its Authorized Users will immediately cease use of the Platform Services, and each party will return and make no further use of any Confidential Information (and all copies thereof) belonging to the other party. Provider may destroy or otherwise dispose of any Customer Data in its possession unless Provider receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent back-up of the Customer Data. Provider will use all reasonable efforts to deliver the back-up to Customer (subject to Provider’s proprietary rights in the Aggregate Data) within thirty (30) days of its receipt of such a written request. Customer will pay all reasonable expenses incurred by Provider in returning Customer Data to Customer. Also upon expiration or termination of this Agreement, Provider will cease use of the Customer Marks; provided, however, that (i) Provider will have a reasonable time to remove the Customer Marks from promotional materials, and (ii) Provider will not be required to remove any such printed materials from circulation.
8.4 Survival. The rights and obligations of the Parties contained in Sections 1 (Definitions), 4 (Fees, Expenses and Taxes), 5 (Ownership), 6 (Confidentiality), 7 (Warranty Disclaimer), 8.3 (Rights and Obligations Upon Expiration or Termination), 8.4 (Survival), 9 (Indemnification), 10 (Limitation of Liability), and 11 (General) will survive expiration or termination of this Agreement.
INDEMNIFICATION
9.1 Indemnification by Provider. Provider will defend any suit or action brought against Customer to the extent that it is based upon a third party claim that the Platform Services, as provided by Provider to Customer pursuant to this Agreement, infringe any U.S. patent or copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. Provider’s obligations under this Section 9.1 are contingent upon: (i) Customer providing Provider with prompt written notice of such claim; (ii) Customer providing reasonable cooperation to Provider, at Provider’s expense, in the defense and settlement of such claim; and (iii) Provider having sole authority to defend or settle such claim.
9.2 Injunctions. If Customer’s use of the Platform Services is, or in Provider’s opinion is likely to be enjoined due to the type of claim specified in Section 9.1, then Provider may at its sole option and expense: (i) replace or modify the Platform Services to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Platform Services under the terms of this Agreement; or (iii) terminate Customer’s rights and Provider’s obligation under this Agreement with respect to such Platform Services and refund to Customer a pro-rata portion of the Fees paid in advance by Customer attributable to the remaining Term during which Customer would have had access to the Platform Services.
9.3 Exclusions. Notwithstanding the terms of Section 9.1, Provider will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) any modification or alteration of the Platform Services, if a claim would not have occurred but for such modification or alteration, (ii) the combination, operation or use of the Platform Services with equipment, devices, software or data (including without limitation Customer Data) not supplied by Provider, if a claim would not have occurred but for such combination, operation or use; or (iii) Customer’s or an Authorized User’s use of the Platform Services other than as permitted in this Agreement.
9.4 Sole Remedy. THE FOREGOING STATES THE ENTIRE OBLIGATION OF PROVIDER AND ITS LICENSORS WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY PROVIDER AND/OR THE PLATFORM SERVICES.
9.5 Indemnification by Customer. Customer will defend, indemnify and hold Provider, its officers, directors and employees (collectively, “Provider Indemnitees”) harmless, from and against any action or suit brought against a Provider Indemnitee by a third party in connection with Customer’s or an Authorized User’s use of the Platform Services (other than any claim for which Provider is responsible under Section 9.1) including but not limited to a claim that the Customer Data or Customer’s use of the Platform Services infringe or misappropriate any Intellectual Property Rights of a third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Provider. Customer’s obligations under this Section 9.5 are contingent upon: (i) Provider providing Customer with prompt written notice of such claim; (ii) Provider providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (iii) Customer having sole authority to defend or settle such claim.
LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 2.2 (RESTRICTIONS), 2.3 (ACCEPTABLE USE POLICIES) OR SECTION 6 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
Notwithstanding any other provisions of this Agreement, EXCEPT FOR LIABILITY UNDER SECTION 6 (CONFIDENTIALITY), in no event will Provider’s aggregate liability to Customer and any Third party in connection with this Agreement OR CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM SERVICES exceed the total ANNUAL fees paid by Customer IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, regardless of the form OR THEORY of THE claim or action.
- GENERAL
11.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of Colorado, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts that are most closely located to Provider’s address above, in Colorado. Provider and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.2 Waiver, Severability. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
11.3 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, pandemic, fires, flood, storm, explosions, acts of God, pandemic, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.4 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.5 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
11.6 Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Provider’s prior written consent. Provider may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise. Any attempted assignment or transfer in violation of this Section 11.6 will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
11.7 Entire Agreement. This Agreement, each Order Form, and the exhibits and schedules attached to either of the same constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
11.8 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.9 Miscellaneous. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Except as set forth in Section 9.4, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. In case of any conflict between this Agreement and an Order Form, the terms of this Agreement will prevail to the extent of such inconsistency. Only the parties to this Agreement may enforce it. All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to the addresses set forth above (for Provider) or in the Order Form (for Customer), or delivered in person. This Agreement may be executed in counterparts, each of will constitute an original, and all of which will constitute one and the same instrument. The headings in this Agreement are for the convenience of reference only and have no legal effect.
