LMS Master Service Agreement
1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE
This Praetorian Digital Master Service Agreement (“Agreement”) is entered into between Praetorian Group, Inc. DBA Praetorian Digital (“PD”) and the customer (“Customer”) identified on the first order document signed by both Parties referencing this Agreement (“Order Form”), effective as of the effective date identified in that Order Form (“Effective Date”). Capitalized terms in this Agreement are defined in Section 16 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access to and use of PD’s Service, and the SOW governs any Professional Services PD provides to Customer. “Customer” and “PD” also include such Party’s respective Affiliates, and Customer and PD may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” In the event of any conflicts between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN PD AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY PD SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY PD SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, PD’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY PD SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.
2) OWNERSHIP OF SERVICE & CUSTOMER DATA
2.1 Ownership of the Service. The Service is the property of PD, and is protected by copyright, patent, trade secret and other intellectual property laws. PD and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by PD and its licensors.
2.2 Ownership of Customer Data. As between Customer and PD, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof. PD retains no right or interest in any Customer Data.
3) GRANT OF RIGHTS
Subject to the terms and conditions of this Agreement, PD hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW (e.g., any transaction volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein).
4) USE OF SERVICE
4.1 Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s User accounts, and must comply with all applicable laws and regulations in connection with using the Service. Customer also must (a) notify PD promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify PD promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Service. PD will promptly notify the customer of any breach or unauthorized access of the service.
4.2 Use Restrictions. During the term of this Agreement or any Order Form or SOW, Customer must not, without PD’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement; provided however, that Customer may allow its own customers to access the functionality or output of the Service, via interfaces, portal applications and the like, solely for Customer’s internal business purposes in accordance with the applicable Order Form; (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; (g) sending of spam or otherwise duplicative or unsolicited messages in violation of applicable law; (h) sending or storing of infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any material violative of third party privacy rights); or (i) intentionally sending or storing of any material containing any viruses, worms, trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. This provision includes sharing login access to PD Technology or PD supplied content contained therein.
4.3 You and Your Authorized Users will need to set up an account and maintain Internet access to use the Service. You and Your Authorized Users will need Internet access and may need to create or log into an account to use the Service and PD reserves the right to require that. You agree that you and Your Authorized Users will not share any user ID or passwords. You agree you will not allow anyone else to access your account (except as expressly allowed by these Terms) or do anything else that might jeopardize the security of your account. You will be solely responsible for arranging and paying any cost for Internet or other network access, equipment, software, services and other resources required for you to access and/or use the service, including, without limitation, Internet service provider fees, telecommunications fees, and the costs of any equipment and third-party software (including, without limitation, encryption and other security technology). PD will not be responsible for the support of your access and will not be responsible for the reliability, security or performance of any access if documented technical requirements are not met.
5) PRIVACY, SECURITY, CONTINUITY & SUPPORT
5.1 Compliance with Privacy Laws. PD will use Customer Data in connection with the Service only as permitted by Privacy Laws and this Agreement; provided, however, that if compliance with any Privacy Laws would materially change PD’s costs or risks in providing the Service (including, without limitation, by requiring that any PD data centers be located outside the U.S., or requiring PD to operate in violation of any U.S. laws), each Party will have the right to terminate this Agreement (including all Order Forms and SOW) under Sections 6.2 and 6.5 upon at least thirty (30) days prior written notice to the other Party, unless Customer and PD agree in writing within such 30-day period that PD may continue to provide the Service to Customer without complying with the Privacy Laws giving rise to such material change. In the event of a termination under this section, Customer’s sole right, and PD’s sole obligation, will be for PD to promptly refund to Customer on a pro rata basis any Service Edition Fees prepaid under applicable Order Forms that are unused as of the termination effective date.
5.2 Security of the Service. PD’s data security program for the Service will: (a) include industry standard reasonable security measures to protect against unauthorized access to any Customer Data residing in the Service; (b) comply with PCI DSS; and (c) comply with all laws and regulations surrounding the Service. PD will not be responsible or liable for any deletion, correction, damage, destruction or loss of Customer Data that does not arise from a breach by PD of its obligations under this Agreement, except for PD’s gross negligence or willful misconduct.
5.3 Financial Account Data. For customers using PD’s eCommerce functions and financial services, all customer credit card data will process using the Authorize.net virtual terminal. Customer will be provided access to the Authorize.net account and can export customer data at customer’s discretion. PD encourages Customer to back-up its Customer Data by exporting it regularly. PD agrees to comply with all applicable local, state and federal laws and regulations with respect to any and all credit card processing and invoicing services provided to Customer’s users during the term of the Agreement in accordance with any SOW and/or Order Form.
5.4 Business Continuity & Disaster Recovery. PD will maintain and implement throughout the term of this Agreement business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service. PD will provide Customer with copies of its business continuity and disaster recovery plans within 30 days of Customer’s written request.
5.5 Support & Service Level Agreement. PD will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.
6) TERM & TERMINATION
6.1 Term of Agreement. This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with Section 6.5.
6.2 Termination of Agreement. Neither Party will have the right to terminate this Agreement without legally valid cause (a/k/a “for convenience”). Each Party may terminate this Agreement only by terminating in accordance with Section 6.5 all Order Forms and SOW then in effect.
6.3 Effect of Expiration or Termination of Agreement. Sections 1, 2, 4.2, 6.3, 6.6, 8, 9, 10, , 11.3, 12, 13, 14, 15, and 16 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order Forms and SOW may identify additional terms that will survive any expiration or termination of this Agreement. Regardless of the basis for expiration or termination of this Agreement, PD will not be obligated to retain any Customer Data for longer than ninety (90) days after any such expiration or termination.
6.4 Term of Order Forms. The term of particular Order Forms will be set forth therein, starting on the Effective Date specified therein and continuing for the initial term specified therein (“Initial Service Term”).
6.5 Termination of Order Forms or SOW. Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the exclusive remedy provisions in this Agreement: either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. In the event the software does not function as represented, Customer has the option to cancel the contract after the first year. Customer must notify PD of the intent to cancel at least thirty (30) days prior to the end of the contract term.
6.6 Effect of Termination of Order Forms or SOW.
If an Order Form or SOW is terminated in accordance with Section 6.2 or 6.5, all terms of such Order Form or SOW that reasonably should survive such termination will survive, including, without limitation, Customer’s payment obligations if PD terminates for cause.
7) ORDER PROCESS
Customer orders the PD Service via one or more Order Forms, and Customer may also order PD’s Professional Services via one or more SOW.
7.1 Purchase Orders. If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to PD such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. Any conflicting terms and conditions of any PO are superseded by the rights or obligations of the Parties outlined in this Agreement or any SOW or Order Form, regardless of any failure to object to such terms and conditions.
7.2. Modification of Fees Upon Renewal. PD reserves the right to modify the Fees for its Service under any future Order Forms, effective upon commencement of any renewal Term for the Service on the relevant Order Form(s), by notifying Customer in writing at least thirty (30) days before the end of the then-current Service Term.
8) FEES & PAYMENT
8.1 Payment Details. Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”). Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW, or as provided by law:
- All obligations to pay Fees are non-cancelable and all payments are non-refundable;
- Customer must make all payments without setoffs, withholdings or deductions of any kind;
- Customer must pay all Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when PD emails them to Customer’s designated billing contact); and
- All payments must be in U.S. dollars.
Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), PD is permitted to process such payment on the date of PD’s invoice.
8.2 Taxes. PD’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties, excluding only taxes based solely on PD’s income. If PD has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides PD a valid tax exemption certificate authorized by the appropriate taxing authority.
8.3 Customer Contact Information. Customer agrees to provide PD accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to PD’s Accounts Receivable team for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one Admin who is a current employee and is authorized to administer Customer’s use of the Service.
8.4 Consequences of Non-Payment. If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights PD may have under this Agreement or applicable law:
- Customer will owe PD an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);
- PD will be entitled to recover its reasonable attorneys’ fees, and other reasonable costs to collect such amounts; and
- PD reserves the right to temporarily suspend Customer’s access to the Service if Customer’s account remains delinquent for thirty (30) days after receipt of a delinquency notice from PD (which may be provided via email to Customer’s billing contact). Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension due to Customer’s delinquency.
9) THIRD PARTY INTERACTIONS
To the extent use of the Service requires use of any third party products or services (e.g., Oracle Java, Adobe Acrobat, Amazon Web Services and/or a Web browser), such products and services may require Customer to agree to separate terms. Similarly, in connection with using the Service, Customer may enter into correspondence with, purchase products and/or services from, and/or participate in promotions of third parties. Any such third party activities, products and services, and any terms associated therewith, are solely between Customer and the relevant third parties. PD does not support, or endorse or make any representations or warranties regarding, any such third party products or services, and in no event will PD have any liability whatsoever in connection therewith.
10) SERVICE AND PROFESSIONAL SERVICES
If Customer wishes to purchase any training, implementation or other professional services from PD relating to the Service (“Professional Services”), the Parties will mutually execute one or more separate SOW containing the relevant terms and conditions. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions will apply to all SOW:
- As between Customer and PD, Customer will retain all ownership rights in and to all copyrightable works owned by Customer including without limitation, inventions, software, trade secrets, work product, methodologies, techniques, tools, algorithms, materials, products, ideas, designs, and know-how (including all copies, enhancements, modifications, revisions, and derivative works of any of the foregoing), that existed prior to the Effective Date of any SOW or Order Form or are acquired by Customer from a third party thereafter or developed independently and outside the scope of this Agreement (and associated intellectual property rights) (“Pre-existing Customer Intellectual Property”) and any software, design, content, methodologies, techniques, processes, inventions, materials or other deliverables developed in whole or in part by PD, or otherwise provided to Customer, in connection with this Agreement or any applicable SOW or Order Form (“PD Deliverables”), other than PD Independent Intellectual Property as defined below, shall be the property of Customer. Therefore, as between PD and Customer, Customer will at all times be and remain the sole and exclusive owner of any Pre-Existing Customer Intellectual Property and PD Deliverables. Customer grants PD a non-exclusive, non-transferable, worldwide, royalty-free license solely to use such Pre-Existing Customer Intellectual Property in connection with providing the Service during the term of this Agreement or any applicable SOW or Order Form and otherwise performing its obligations under this Agreement.
- All software and services owned and developed by PD, methodologies, techniques, software libraries, tools, algorithms, materials, products, ideas, designs, and know-how (including all copies, enhancements, modifications, revisions, and derivative works of any of the foregoing), that existed prior to the Effective Date of any SOW or Order Form or are acquired by PD from a third party thereafter or developed independently and outside the scope of this Agreement (and associated intellectual property rights) (“Pre-existing PD Intellectual Property”) and any software, design, content, methodologies, techniques, processes, inventions, materials or other deliverables independently developed in whole by PD (“PD Independent Intellectual Property”), and provided to Customer, in connection with this Agreement or any applicable SOW or Order Form, other than the PD Deliverables shall be the property of PD. As between PD and Customer, PD will at all times be and remain the sole and exclusive owner of any Pre-Existing PD Intellectual Property and PD Independent Intellectual Property. ; and
- Subject to the terms of this Agreement, PD grants Customer a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, create derivative works of, and otherwise use internally the Pre-Existing and Independent PD Intellectual Property in connection with the Service during the Term of this Agreement.
Nothing in this Agreement will prohibit, restrict or limit (i) PD from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not permitted to give any direct competitor of PD access to the Service or any Pre-Existing and Independent PD Intellectual Property without PD’s prior written consent).
11) WARRANTIES & DISCLAIMERS
11.1 Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.
11.2 Additional PD Commitments. PD further represents and warrants that:
- It will use commercially reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;
- It will make commercially reasonable efforts to notify Customer, at least thirty (30) days in advance via PD’s Normal Communication Channels, of any scheduled changes PD believes are likely to have a material, adverse impact on Customer’s use of the Service (“Material Changes”). (As a multi-Tenant SaaS vendor, PD reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality.)
If PD breaches any warranties in this Section 11.2, Customer’s exclusive remedy and PD’s sole obligation will be for PD to make commercially reasonable efforts to correct the non-conformity or, if PD is unable to correct the non-conformity within sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any Service Edition Fees prepaid under such Order Form(s) that are unused as of the termination effective date.
11.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT: (A) PD AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) PD AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. PD AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY PD.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. PD IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY PD.
Customer agrees that ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE neither contingent on the delivery of any future functionality or features, nor BASED on any oral or written comments regarding ANY future functionality or features.
12.1 Each party shall defend, indemnify and hold the other party, its officers, directors, agents, affiliates and employees harmless from any loss, liability, claim, suit or expense (including, without limitation, reasonable attorney’s fees and costs) on account of any third party claim arising from the indemnifying party’s (i) breach of this Agreement, (ii) infringement of a third party right, (iii) negligent or willful act or omission, or (iv) violation of any law, statute, ordinance, rule or regulation throughout the world, in each case as relating to or arising from the performance of the Services and/or this Agreement.
PD will have no obligation or liability and Customer will indemnify and hold harmless PD for any third party claim under this section to the extent arising from: (i) the combination, operation or use of the Service with any product, training content, device, software or service not supplied by PD to the extent the combination creates the infringement; (ii) the unauthorized alteration or modification by Customer of the Service, (iii) PD’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance, (iv) Customer’s content or training curriculum, or (v) arising from the Customer’s use of the LMS to deliver or track training or use PD content for its organization’s training or that of its customers.
THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE OTHER PARTY’S EXCLUSIVE REMEDIES, IN CONNECTION WITH THIS AGREEMENT WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.
13) LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
13. 1 The PD LMS and any content contained therein including but not limited to videos, policIes and training courses whether created by PD or shared by customers serve as examples of best practices and should not in any way replace, interfere, or override individual agency of companies protocol, standard operating procedure, tactics or policies. The LMS and any content is provided “as is, as available” basis without warranty of any kind, expressed, implied or statutory, and any and all warranties of merchantability, fitness for a particular purpose or non-infringement of third parties’ rights are specifically disclaimed. Although PD has made best efforts to provide accurate training information on the site, PD makes no guarantee or warranty express or implied, as to the reliability, accuracy, timeliness or completeness of that information and assumes no liability for errors or omissions therein.
13.2 EXCEPT FOR SUMS DUE PD UNDER APPLICABLE ORDER FORMS AND SOW, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS) AND 12 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY;
13.3 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS) AND 12 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS PREVIOUSLY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
13.4 THE TERMS OF THIS SECTION 13 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE PROVISIONS OF THIS SECTION 13 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND PD, AND THE FEES CHARGED FOR THE SERVICE REFLECT THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
14.1 Definition. As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, all Customer Data, all Customer non-public business information, and Customer’s Intellectual Property, and PD’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, PD’s non-public business plans, all non-public aspects of the PD Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
14.2 Purpose. Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”).
14.3 Permitted Disclosures and Obligations. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors, consultants, and employees who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’, consultants’ and employees’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors, consultants, and employees who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure.
14.4 Exclusions. Recipient’s obligations under Section 14 will not apply to any Discloser Confidential Information that Recipient can prove with sufficient documentary evidence: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.
14.5 Ownership and Destruction of Confidential Information. As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, commercially reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.
14.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate agreement, the Parties will not disclose any information requiring an authorization to be exported.
14.7 Confidentiality Period. Recipient’s obligations with respect to Discloser’s Confidential Information under Section 14 will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.
15.1 Governing Law. This Agreement is governed by Delaware law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, USA. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods.
15.2 Assignment. Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to its Affiliate. In the event of such a permitted transfer by Customer, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.
Notwithstanding anything to the contrary in this section, in the event of any permitted transfer by Customer under this section to a direct competitor of PD, PD will have the right to terminate this Agreement (including all associated Order Forms and SOW) for cause under Section 6.5. In the event of such a termination, PD will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are unused as of the termination effective date.
15.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.
15.4 Marketing. Upon Customer’s prior written consent, which may be withheld or revoked at any time in Customer’s sole discretion, PD is may identify Customer as a PD customer on PD’s website and marketing materials. Within thirty (30) days after Customer goes live on the Service, (a) Customer and PD will issue a mutually agreed joint public announcement, and (b) Customer may consider serving as a reference for PD in Customer’s sole discretion. Customer further agrees that “Powered by PD” or a similar PD mark may appear in invoices, quotes, hosted payment pages, hosted checkout pages, and similar outputs generated through Customer’s use of the Service.
15.5 Independent Contractors. The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.
15.6 Notices. All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email PD’s primary assigned contact and PD may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.
15.7 Anti-Corruption. Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any PD employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify PD if Customer becomes aware of any circumstances that are contrary to this acknowledgment.
15.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
15.10 Entire Agreement. This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and PD regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.
As used in this Agreement:
“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the audio and visual information, documentation, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information;
“Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service;
“Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;
“Normal Communication Channels” means the online channels through which PD normally communicates important information to its customers, e.g., PD’s online Knowledge Center and community site, and/or the email address(es) provided by Customer. (Customer must opt-into PD’s online community site to receive certain important information regarding such changes and to take other required action relating to use of the Service.);
“Privacy Laws” means all European Union member country and U.S. laws and regulations regarding data privacy and transmission of personal data that apply to PD’s provision of the Service to Customer (e.g., storing and processing Customer Data), including, without limitation, Articles 25(1) and 26(1) of EU Directive 95/46/EC of 24 October 1995;
“Service” means PD’s online subscription service (e.g., for subscription billing management and analytics), accessible via any Web site or IP address designated by PD, which PD provides to Customer under an Order Form. “Service” also includes all components of PD’s online LMS service, and all Content and PD Technology provided by PD in connection therewith;
“SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which PD provides its Professional Services, if any;
“User(s)” means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service; and
“PD Technology” means all of PD’s and its licensors’ proprietary technology that PD makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).
Appendix A: Service Level Agreement
- Response Times
For all support issues relating to the PD LMS, PD will make an industry standard and commercially reasonable effort to respond promptly (via PD’s Normal Support Channels), in any event within two (2) Business Days after receipt.
- Uptime Commitment
The Uptime Percentage for the Service will be ninety-nine and five-tenths percent (99.5%) (the “Uptime Commitment”). Subject to the exclusions described in Subsection C below, “Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any yearly billing cycle (i.e., 12 calendar months) in which Customer’s Production Tenant(s) is (are) Unavailable out of the total number of minutes in that quarterly billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Customer’s Production Tenant(s) failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Yearly Uptime Percentage will be measured based on the industry standard monitoring tools PD uses.
- Response Times
- Exclusions from Uptime Percentage
Notwithstanding anything to the contrary in this exhibit, any Service Unavailability issues resulting from any of the following will be excluded from calculation of Quarterly Uptime Percentage:
- Regularly scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by PD at least twenty-four (24) hours in advance via PD’s Normal Support Channels. (PD typically schedules such regularly scheduled maintenance once per month.);
- Any failures of the PD Standard and Custom Reporting Services that does not exceed six (6) hours per 3-month period and is communicated by PD at least twenty-four (24) hours in advance via PD’s Normal Support Channels.;
- Okta, or a payment gateway);salesforce.com– Any issues with a third party service to which Customer subscribes (e.g.
- Any problems not caused by PD that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, or (d) other issues with electronic communications;
- PD’s suspension or termination of the Service in accordance with the Agreement and/or its associated Order Form;
- Exceeding PD’s published Concurrent Request Limits;
- Software that has been subject to unauthorized modification by Customer;
- Negligent or intentional misuse of the Service by Customer; or – “Beta” or “limited availability” products, features and functions identified as such by PD. Customer may elect to use certain billable PD Professional Services to resolve issues associated with the excluded areas listed in this Exhibit A. Such Professional Services may require Customer to complete a network assessment, and/or give PD access to Customer’s network, in order to diagnose the issue.
MSA Last Updated: 3/3/17