These Standard Terms and Conditions, together with the Service Order(s) and any attached Exhibits (collectively, the "Agreement"), apply to and govern the services to be performed by Knowledge Anywhere, Inc. ("Company") for _________________Client") pursuant to the Service Order attached hereto and other Service Orders agreed upon in writing by the parties from time to time. Company's acceptance of any Service Order is expressly conditioned on Client's acceptance of the terms and conditions of the Agreement.
1. Description of the Services
1.1 Development and Hosting. Company will develop and, following such launch date as the parties may agree upon (the "Launch Date"), host and maintain a customized technology based online learning ("System") in accordance with the Agreement and the signed proposal between the parties attached to the Service Order ("Proposal").
1.2 Content. Client will cooperate with Company and provide to Company all information, images, text, photographs, graphics, audio clips, video clips or other content ("Content") described in the Proposal ("Client Content"). Client is solely responsible for the delivery of all Client Content and for obtaining, at its sole expense, all rights necessary to allow Company to include and display the Client Content on the System, and ensuring that the Client Content is current, accurate and complete. Client will promptly notify Company in writing of any Client Content that is out of date or inaccurate, and will promptly provide Company with any and all updates or changes to the Client Content so that the Client Content is current and accurate.
1.3 Licensing, Hosting, Maintenance and Support. In consideration of the payment of the licensing, hosting, maintenance and support fees described in the Service Order, Knowledge Anywhere will provide the following services for the system:
1.3.1 Maintenance and Support. Knowledge Anywhere will use commercially reasonable efforts to maintain the System and to implement and integrate maintenance requests to the Content requested by Client. Maintenance covers required changes such as a change in trade mark status minor incidences of inaccurate content and minor changes to procedures or out of date content. Personal preference changes are not covered under the maintenance agreement. All out-of-pocket costs and expenses associated with such changes will be paid or reimbursed by Client. Knowledge Anywhere will provide telephone and e-mail support to Client's designated technical support contact during the hours of 9 a.m. to 5 p.m. (Pacific time), Monday through Friday, excluding holidays observed by Knowledge Anywhere. Such support will include: (a) assistance in identifying and verifying causes of suspected Errors (as defined below), and (b) assistance related to questions regarding the use of the System. Knowledge Anywhere reserves the right to assess charges to Client for maintenance and support hours that exceed the calendar month allotment stated in the Proposal. Unused hours do not accrue.
1.3.2 Error Correction. Knowledge Anywhere will use commercially reasonable efforts to correct (e.g., by providing a workaround or correction) any reproducible Errors reported by Client. "Error" means any failure of the System to perform substantially in accordance with the Specifications. Knowledge Anywhere will use commercially reasonable efforts to respond to each of Client's written notices of Error within 24 hours.
1.3.3 Exclusions. The services described in paragraphs 1 through 3 above do not include any work with any third party equipment or software. Knowledge Anywhere has no obligation to correct any Error resulting from misuse of the System.
2. Compensation
2.1 Development Fees. Client will pay a development fee in the amount specified in the applicable Service Order in accordance with the payment schedule set forth therein. Changes to the Client Content and or functional changes to the System will be completed by Company at Company's then-current fees.
2.2 Recurring Fees. In addition to the development fee, Client will pay to Company, beginning on the Launch Date, hosting, licensing, maintenance and support fees as specified in the applicable Service Order. Company will invoice Client for such recurring fees and each invoice will be paid subject to the terms outlined in the Service Order.
2.3 Payment. If at any time, Client is delinquent in the payment of any invoice or is otherwise in breach of the Agreement, Company may, in its discretion, and without prejudice to its other rights, withhold services and access to the System or may, at its option, require Client to prepay for services. Late payments hereunder will accrue interest at the rate of one and one half percent per month or the highest rate allowed by applicable law, whichever is lower. Further, Client will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Company to collect any amount that is not paid when due. All payments required by the Agreement are exclusive of all excise, sales, value-added, use, taxes and similar taxes now in force or enacted in the future, all of which Client will be responsible for and will pay in full (other than taxes based on Company's net income).
3. Proprietary Rights
3.1 Ownership. As between the parties: (a) Client retains all right, title and interest in and to all trademarks of Client and the Client Content, along with all related intellectual property rights; and
(b) Company retains all right, title and interest in and to all trademarks of Company and the System (including, without limitation, all technology, inventions, code, methods, Content (other than Client Content) and related databases), along with all related intellectual property rights ("Company Proprietary Materials"). Client acknowledges and agrees that Company is in the business of developing and hosting systems for itself and others, and that Company will have the right to provide to third parties services that are the same or similar to the services provided hereunder, and to use or otherwise exploit any Company Proprietary Materials in providing such services.
3.2 Grant of License by Client. Client hereby grants to Company a non-transferable, royalty-free license during the Term to (a) adapt, edit, modify, reproduce, publish, transmit, display and otherwise use Client Content to the extent reasonably necessary to develop, host and maintain the System hereunder, and (b) use the Client's trademarks on the System. Client reserves all rights not expressly granted under this Agreement. Company’s use of Client's trademarks is subject to reasonable usage guidelines that Client may provide from time to time.
3.3 Grant of License by Company. Company hereby grants Client a non-transferable license to access and use the System solely for Client’s internal business purposes as described in the Service Order. Client will not, and will not assist, authorize or encourage any third party to (a) use the Company Proprietary Materials in connection with any Website other than the System;
(b) reverse engineer, decompile or disassemble any source code or otherwise attempt to discover any source code or trade secrets related to the System; (c) distribute, license, rent, sell, lease or otherwise transfer the System; (d) modify or create derivative works based on the System; (e) remove, obscure or alter any notice of copyright, trademark or other proprietary notices present on or in any of the System; or (f) use any Content developed or provided by or on behalf of Company for any purpose other than displaying such Content on the System.
3.4 User Access. Client acknowledges and agrees that Company may require, as a prerequisite to access to some or all of the System, that users execute Company's then-current user agreement pertaining to such access.
3.5 Confidential Information. The recipient (whether Company or Client) will protect the Confidential Information of the disclosed (whether Company or Client) against any unauthorized use or disclosure to the same extent that the recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure. "Confidential Information" means any
information that is a trade secret or is proprietary or confidential information or that a party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third
party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information that relates to a party's technology, research, development, products, customers, employees, contractors, marketing plans, finances, contracts, legal affairs or business affairs). Confidential Information does not include any information that (a) was known to the recipient prior to receiving the same from the discloser in connection with the Agreement; (b) is independently developed by the recipient without reliance on any Confidential Information of the discloser; (c) is acquired by the recipient from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the recipient. Each party reserves ownership of its own Confidential Information. The recipient will use Confidential Information of the discloser solely for the purposes for which it is provided by the discloser. The parties acknowledge and agree that Section 3.5 will not be interpreted or construed to prohibit: (I) any use or disclosure that is necessary for recipient's performance of its obligations under the Agreement; (ii) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal or regulatory process); provided, that the recipient uses reasonable efforts to give the discloser reasonable advance notice thereof (e.g., so as to afford the discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (iii) any use or disclosure made with the prior written consent of the discloser. Within five (5) days of request by the discloser or upon any termination or expiration of the Term, each recipient will
return to the discloser all Confidential Information of the discloser, together with all copies thereof.
3.6 Privacy and User Information. If the Client intends to enable consumers or any person who is not an employee of Client to access the System, Client and Company will work together to
establish a privacy policy for the System that fully and accurately describes the Client's and the Company's information collection and use practices with respect to the System. Unless otherwise agreed, Client will own all right, title and interest in and to all data and information submitted or collected from users of the System ("User Data"); provided, however, that Company will have the right to use, reproduce and transmit User Data in connection with its performance of its obligations under this Agreement. In addition, Company has the right to, in its sole discretion, utilize, capture, extract, compile, synthesize and analyze non-personally identifiable information from the System.
3.7 Demonstration License. Subject to Company's obligations under paragraph 3.5, Company will have the right to demonstrate the functions and features of the System to prospective customers.
4. Limited Warranty
4.1 Limited Warranty. Company represents and warrants that the System will conform in all material respects to the applicable specifications set forth in the Proposal. Client’s exclusive remedy and Company’s entire liability for any breach of the foregoing warranty will be Company’s use of reasonable efforts to reperform such non-conforming services so as to conform with the limited warranty set out in this Section 4.1.
4.2 Service Level. Company warrants that Client will experience at least 97% up time in the hosting of the System not including downtime scheduled by Company or its data center hosting provider or downtime caused by reasons beyond Company's reasonable control. Company will be in breach of the foregoing warranty if the System fails to achieve 97% up time (as described
above and measured over a period of a given month) in three consecutive months. Client’s sole and exclusive remedy and Company’s entire liability for any breach of the foregoing warranty will be Client’s right to terminate the Agreement.
4.3 DISCLAIMER. THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION 4 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF COMPANY AND REMEDIES OF CLIENT, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY OR NONCOMPLIANCE IN THE SYSTEM, THE SERVICES OR OTHER ITEMS OR SERVICES FURNISHED BY OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR ANY WARRANTY OF TITLE).
5. Limitations on Liability
5.1 Force Majeure. Except for the obligation to pay money, neither party will be liable for failure or delay in performance under the Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
5.2 Waiver of Consequential Damages. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY), OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, REVENUE OR USE) ARISING OUT OF SUCH PARTY'S PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, BREACH OR DEFAULT UNDER THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE SYSTEM.
5.3 Limitation. Client agrees that Company’s total liability arising out of any kind of legal claim under the Agreement or in any way connected with the System will not exceed, in the aggregate, the total amount of fees Client paid to Company under the Agreement during the six (6) months preceding such claim. THE LIMITATIONS SET FORTH IN SECTIONS 5.2 AND 5.3 WILL NOT APPLY TO A PARTY'S OBLIGATIONS UNDER SECTION 3.5 OR 6 OR A PARTY'S MISUSE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS.
6. Indemnification
6.1 By Company. Company will indemnify and defend Client and its directors, employees and agents from and against any claim of any third party for any damages, costs, fees and expenses (including, without limitation, attorneys' fees) arising out of any claim that the System infringes, misappropriates or otherwise violates any intellectual property right of any third party protected under U.S. law, or constitutes defamation, invasion of privacy or the violation of any right of publicity or other right of any third party; provided, however, that Company will have no obligation under this paragraph to the extent any claim (i) arises out of any modification of the System not specifically performed by Company; (ii) any misuse of the System; or (iii) any materials, content, services or items furnished by Client or any third party. THE FOREGOING CONSTITUTES CLIENT'S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS.
6.2 By Client. Client will indemnify and defend Company and its directors, employees and agents from and against any claim of any third party for any damages, costs, fees and expenses
(including, without limitation, attorneys' fees) arising out of (a) any actual or threatened claim that the Client Marks, Client Content or any other items provided by Client under the Agreement infringe, misappropriate or otherwise violate any intellectual property right of any third party, or constitute defamation, invasion of privacy or the violation of any right of publicity or other right of any third party; and (b) use of the System by Client and its employees, contractors and representatives.
6.3 Procedure. In any claim described in this Section 6, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the claim; (b) permit the indemnifying party to control the defense and settlement of the claim; and (c) cooperate with the indemnifying party (at the indemnifying party's expense) in the defense and settlement of the claim.
7. Term and Termination
The term of the Agreement will commence on the date of the first Service Order and end twelve months thereafter, unless sooner terminated as provided below ("Term"). Company may terminate the Term following notice by Company to Client and subject to a ten day cure period, in the event of: (i) unauthorized use of the System; (ii) material breach of the Agreement or (iii) failure to pay any amount hereunder when due. Client may terminate the Term, following notice by Client to Company and subject to a ten day cure period, in the event of a material breach by Company of its obligations under the Agreement. In the event of any termination of Term for any reason, Client will pay Company for any fees accrued through the date of the termination, and in no event will any fees previously paid be refundable. Upon termination of the Term for any reason, Client’s passwords and/or user IDs will be invalidated and the licenses granted under Section 3 will terminate.
7.1 Automatic Re-enrollments and Contract Renewals. Your LMS subscription will automatically renew for an additional one-year term unless you notify us of any changes at least 30 days before your current subscription term expires. If we do not receive notification from you, your subscription will renew on the same terms, including pricing and service level, as your original agreement. To make any changes or cancel your subscription, please contact us before the renewal deadline.
8. Miscellaneous
8.1 Governing Law. The Agreement will be governed by and construed in accordance with the laws of the state of Washington, without regard to its choice of law principles. Any action or proceeding to enforce the terms of the Agreement will be brought in a court of competent jurisdiction located in the County of King, Washington and the parties hereby consent to the jurisdiction of such courts for purposes of any such action or proceeding.
8.2 Identification; Publicity. Company may in advertising, publicity, or similar materials distributed or displayed to prospective customers use the name of and identification of Client for the purpose of identifying Client as a customer of Company. Client and Company will issue a joint press release describing the transactions contemplated by this Agreement. Such press release will be subject to the prior written approval of both parties (not to be unreasonably withheld or delayed).
8.3 Assignment. The Agreement may not be assigned or transferred by either party without the prior written permission of the other party, which permission will not be unreasonably withheld. Any attempted assignment without such consent will be void. Notwithstanding the foregoing, either party may assign the Agreement, without the other party’s permission, in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction, provided that such assignee agrees to be bound by the terms and conditions of the Agreement. Client agrees that Company may subcontract the hosting and other services to be performed in connection with the Agreement; provided, that any such subcontracting arrangement will not relieve Company of any of its obligations hereunder.
8.4 Waiver and Severability. Failure to enforce any term or condition of the Agreement will not be a waiver of the right to later enforce such term or condition or any other term or condition of the Agreement. If any provision of the Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of the Agreement will remain in full force and effect.
8.5 Relationship of Parties. Company and Client are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Client.
8.6 Entire Agreement. The Agreement is the entire agreement with respect to the subject matter hereof and supersedes any previous agreement with respect to the subject matter hereof. Knowledge Anywhere will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of the Agreement that is proffered by Client in any purchase order, receipt, acceptance, confirmation, correspondence or otherwise, unless Company specifically agrees to such provision in a written instrument signed by Company. The Agreement may only be amended in writing.
8.7 Survival. The terms and conditions of the Agreement that by their context are intended to survive after performance of the obligation hereunder will survive termination or expiration of the Agreement, including but not limited to Sections 3, 4, 5, 6 and 8 of the Agreement.