dominKnow Master
Subscription Agreement
THIS MASTER SUBSCRIPTION
AGREEMENT ("AGREEMENT") GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE
TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT,
EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER
FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL
ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS
AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS
"YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS
AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH
THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE
THE SERVICES.
You may not access the Services if You are Our
competitor, except with Our prior written consent. In addition, You may not
access the Services for purposes of monitoring their availability, performance
or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last
updated on June 15, 2011. It is effective between You and Us as of the date of
You accepting this Agreement.
1. DEFINITIONS..................................................................................................................................................................................................................................... 2
2. FREE TRIAL........................................................................................................................................................................................................................................ 3
3. PURCHASED SERVICES..................................................................................................................................................................................................................... 3
4. USE OF THE SERVICES...................................................................................................................................................................................................................... 4
5. NON-DOMINKNOW PROVIDERS................................................................................................................................................................................................... 5
6. FEES AND PAYMENT FOR PURCHASED SERVICES..................................................................................................................................................................... 6
7. PROPRIETARY RIGHTS..................................................................................................................................................................................................................... 7
8. CONFIDENTIALITY............................................................................................................................................................................................................................ 7
9. WARRANTIES AND DISCLAIMERS................................................................................................................................................................................................. 8
10. MUTUAL INDEMNIFICATION....................................................................................................................................................................................................... 9
11. LIMITATION OF LIABILITY........................................................................................................................................................................................................... 9
12. TERM AND TERMINATION........................................................................................................................................................................................................... 10
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND
JURISDICTION............................................................................................. 11
14. GENERAL PROVISIONS................................................................................................................................................................................................................... 11
"Affiliate"
means any entity which directly or indirectly controls, is controlled by, or is
under common control with the subject entity. "Control," for purposes
of this definition, means direct or indirect ownership or control of more than
50% of the voting interests of the subject entity.
"Widget Library"
means the online directory of widgets and templates that interoperate with the Services, located at http://dominknow.com, http://clarolive.com or at any successor
websites.
"Malicious Code"
means viruses, worms, time bombs, Trojan horses and other harmful or malicious
code, files, scripts, agents or programs.
"Non-dominKnow Applications"
means online applications and offline software products that are provided by
entities or individuals other than Us and are clearly identified as such, and
that interoperate with the Services, including but not limited to those listed
on the Widget Library and those identified as Claro Widgets or by a similar
designation.
"Order Form"
means the documents for placing orders hereunder, including addenda thereto,
that are entered into between You and Us or any of Our Affiliates from time to
time, including addenda and supplements thereto. By entering into an Order Form hereunder, an
Affiliate agrees to be bound by the terms of this Agreement as if it were an
original party hereto. Order Forms shall be deemed incorporated herein by
reference.
"Purchased Services"
means Services that You or Your Affiliates purchase under an Order Form, as
distinguished from those provided pursuant to a free trial.
"Services"
means the products and services that are ordered by You under a free trial or
an Order Form and made available by Us online via the customer login link at http://clarolive.com and/or other web pages designated by Us, including
associated offline and mobile components, as described in the User Guide. "Services" exclude Non-dominKnow Applications.
"User Guide"
means the online user guide for the Services, accessible via http://feedback.dominknow.com/knowledgebase
as updated from time to time. You acknowledge that You have had the opportunity
to review the User Guide during the free trial described in Section 2 (30-Day
Free Trial) below.
"Users"
means individuals who are authorized by You to use the Services, for whom
subscriptions to a Service have been ordered, and who have been supplied user
identifications and passwords by You (or by Us at Your request). Users may
include but are not limited to Your employees, consultants, contractors and
agents, and third parties with which You transact business.
"We," "Us"
or "Our" means the dominKnow Inc. company described in Section
13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or
"Your" means the company or other legal entity for which you
are accepting this Agreement, and Affiliates of that company or entity.
"Your Data"
means all electronic data or information submitted by You to the Purchased
Services.
If You register on our
website for a free trial, We will make one or more Services available to You on
a trial basis free of charge until the earlier of (a) the end of the free trial
period for which you registered or are registering to use the applicable Service
or (b) the start date of any Purchased Services ordered by You. Additional
trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are
incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO
THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING
YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION.
YOU SHOULD EXPORT CONTENT AS WEB COMPLIANT OR SCORM COMPLIANT PRIOR TO
EXPIRATION OF TRIAL IF YOU WISH TO RETAIN THIS INFORMATION, BUT CHOOSE NOT TO PURCHASE
A SUBSCRIPTION. IF YOU DO NOT PURCHASE THE SAME SERVICES AS THOSE COVERED BY
THE TRIAL, SOME ELEMENTS CREATED MAY NOT BE EDITABLE IN YOUR PURCHASED SUBSCRIPTION.
FEATURES AND CAPABILITIES ARE DEPENDENT ON THE PURCHASED SUBSCRIPTION TYPE. IF
YOU PURCHASE A SUBSCRIPTION THAT DOES NOT CONTAIN THE SAME SERVICES AS THOSE
WITHIN THE TRIAL, YOU WILL NOT LOSE ANY ELEMENTS ADDED WITH THE PREVIOUS
SERVICE.
NOTWITHSTANDING SECTION 9
(WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED
"AS-IS" WITHOUT ANY WARRANTY.
Please review the User Guide
during the trial period so that You become familiar with the features and
functions of the Services before You make Your purchase.
3.1.
Provision
of Purchased Services. We shall make
the Purchased Services available to You pursuant to this Agreement and the
relevant Order Forms during a subscription term. You agree that Your purchases
hereunder are neither contingent on the delivery of any future functionality or
features nor dependent on any oral or written public comments made by Us
regarding future functionality or features.
3.2.
User
Subscriptions. Unless otherwise
specified in the applicable Order Form, (i) Services are purchased as User
subscriptions and may be accessed by no more than the specified number of
Users, (ii) additional User subscriptions may be added during the applicable
subscription term at the same pricing as that for the pre-existing
subscriptions thereunder, prorated for the remainder of the subscription term
in effect at the time the additional User subscriptions are added, and (iii)
the added User subscriptions shall terminate on the same date as the
pre-existing subscriptions. User subscriptions are for designated Users only
and cannot be shared or used by more than one User but may be reassigned to new
Users replacing former Users who no longer require ongoing use of the Services.
3.3.
Free
Reviewer Accounts. A Subscription includes unlimited
free reviewer accounts required by You exclusively for the purpose of reviewing
courses for accuracy and function during the development or prior to publishing. Reviewer accounts cannot be used for the
purpose of delivering courses to end users or Your learner audience. Using Reviewer accounts for such is a
violation of this agreement and will be subject to additional hosting fees
and/or termination of your subscription.
For the purpose of this section Reviewer Accounts shall mean any user
account that accesses a course that is unpublished or an account that has been
created using the "New Reviewer" or similar feature.
3.4.
Hosting
and Delivery of Published Courses (Optional). If
this option is included on your Order Form or purchased at a later date and
added to Your User Subscription You are then permitted to publish your courses
for delivery, tracking and reporting to the number of registered learner
accounts specified on Your Order Form. Learner accounts are only for viewing published
courses and cannot be shared or used by more than one learner but may be
reassigned to new learners replacing former learners who no longer require
ongoing use of the course.
4.1.
Our
Responsibilities. We shall: (i)
provide Our basic support for the Purchased Services to You at no additional
charge, and/or upgraded support if purchased separately, (ii) use commercially
reasonable efforts to make the Purchased Services available as outlined in our
Service Level Agreement available in the About section, and (iii) provide the
Purchased Services only in accordance with applicable laws and government
regulations.
4.2.
Our
Protection of Your Data. We shall maintain appropriate administrative,
physical, and technical safeguards for protection of the security,
confidentiality and integrity of Your Data.
We shall not (a) modify Your Data, (b) disclose Your Data except as
compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as
expressly permitted in writing by You, or (c) access Your Data except to
provide the Services and prevent or address service or technical problems, or
at Your request in connection with customer support matters.
4.3.
Your Responsibilities. You shall (i) be responsible for Users' compliance
with this Agreement, (ii) be responsible for the accuracy, quality and legality
of Your Data and of the means by which You acquired Your Data, (iii) use
commercially reasonable efforts to prevent unauthorized access to or use of the
Services, and notify Us promptly of any such unauthorized access or use, and
(iv) use the Services only in accordance with the User Guide and applicable
laws and government regulations. You shall not (a) make the Services available
to anyone other than Users, (b) sell, resell, rent or lease the Services, (c)
use the Services to store or transmit infringing, libelous, or otherwise
unlawful or tortious material, or to store or transmit material in violation of
third-party privacy rights, (d) use the Services to store or transmit Malicious
Code, (e) interfere with or disrupt the integrity or performance of the
Services or third-party data contained therein, or (f) attempt to gain
unauthorized access to the Services or their related systems or networks.
4.4.
Usage
Limitations. Services may be subject
to other limitations, such as, for example, limits on disk storage space, on
the number of calls You are permitted to make against Our application
programming interface (API), and, for Services that enable You to host,
deliver, register, report and track your published courses, on the number of registered
learners or views by visitors to those courses. Any such limitations, if they
exist, will be specified in Your "User Account" menu within the product. The
Services provide real-time information to enable You to monitor Your compliance
with such limitations.
4.5.
Claro
Stock Assets Library. Claro includes access to a
library of stock images, speech bubbles, people, clipart, shapes, audio, video
and photos. Access to these Assets and
permissions to use these Assets are provided to you for use in Claro authored
courses only. Your permission and access
to these Assets is limited to the following terms:
•
Your subscription is current and under good payment terms, in accordance
with Section 6 of this agreement.
•
You use the Stock Assets within Claro created courses only.
You are prohibited to use Claro Stock Assets in:
•
Design template applications intended for resale, whether on-line or not,
including, without limitation, website templates, flash templates, business
card templates, electronic greeting card templates, and brochure design
templates.
•
Other non-Claro products including any authoring, office products, or development
tools.
Upon termination of your subscription any Assets you
have used from our Stock Asset Library can continue to be hosted, stored and
delivered within courses created in Claro and published as a course from Claro,
so long as the course remains unedited or unaltered outside of Claro. If you alter in anyway (edit, update) the
course outside of Claro using any software, tool, authoring tool, system,
product or service other than Claro you must remove and destroy any and all
Claro Stock Assets from your Claro published course.
5.1.
Acquisition
of Non-dominKnow Products and Services.
We or third parties may from time to time make available to You (e.g., through
the Media Browser, Template Library, Widget Library or a third-party website)
third-party products or services, including but not limited to Non-dominKnow Applications,
templates and designs, widgets, customization and other consulting
services. Any acquisition by You of such
non-dominknow products or services, and any exchange
of data between You and any non-dominknow provider,
is solely between You and the applicable non-dominknow
provider. We do not warrant or support non-dominknow products
or services, whether or not they are designated by Us as "certified" or otherwise,
except as specified in an Order Form. Subject to Section 5.3 (Integration with Non-dominKnow
Services), no purchase of non-dominKnow products or services is required to use
the Services except a supported computing device, operating system, web browser
and Internet connection.
5.2.
Non-dominKnow
Applications and Your Data. If You
install or enable Non-dominKnow Applications for use with Services, You
acknowledge that We may allow providers of those Non-dominKnow Applications to
access Your Data as required for the interoperation of such Non-dominKnow Applications
with the Services. We shall not be responsible for any disclosure, modification
or deletion of Your Data resulting from any such access by Non-dominKnow Application
providers. The Services shall allow You to restrict such access by restricting
Users from installing or enabling such Non-dominKnow Applications for use with
the Services.
5.3.
Integration
with Non-dominKnow Services. The Services may contain features designed to
interoperate with Non-dominKnow Applications (e.g., templates, designs, widgets, Video Editors/transcoders, SCORM Cloud, Kaltura,
youTube, Vimeo, TED etc.) To
use such features, You may be required to obtain access to such Non-dominKnow Applications
from their providers. If the provider of any such Non-dominKnow Application
ceases to make the Non-dominKnow Application available for interoperation with
the corresponding Service features on reasonable terms, We may cease providing
such Service features without entitling You to any refund, credit, or other
compensation.
6.1.
Fees. You shall pay all fees specified in all Order Forms
hereunder. Except as otherwise specified herein or in an Order Form, (i) fees
are based on services purchased and not actual usage, (ii) payment obligations
are non-cancelable and fees paid are non-refundable, and (iii) the number of
User subscriptions purchased cannot be decreased during the relevant
subscription term stated on the Order Form. User subscription fees are based on
monthly or yearly periods that begin on the subscription start date and each
anniversary thereof; therefore, fees for User subscriptions added in the middle
of a period will be charged for that full period and the periods remaining in
the subscription term.
6.2.
Invoicing
and Payment. You will provide Us with
valid and updated credit card information, or with a valid purchase order or
alternative document reasonably acceptable to Us. If You provide credit card information to Us,
You authorize Us to charge such credit card for all Services listed in the
Order Form for the initial subscription term and any renewal subscription
term(s) as set forth in Section 12.2 (Term of Purchased User
Subscriptions). Such charges shall be
made in advance, either annually or in accordance with any different billing
frequency stated in the applicable Order Form. If the Order Form specifies that
payment will be by a method other than a credit card, We will invoice You in
advance and otherwise in accordance with the relevant Order Form. Unless
otherwise stated in the Order Form, invoiced charges are due net 30 days from
the invoice date. You are responsible for providing complete and accurate
billing and contact information to Us and notifying Us of any changes to such
information.
6.3.
Overdue
Charges. If any charges are not
received from You by the due date, then at Our discretion, (a) such charges may
accrue late interest at the rate of 1.5% of the outstanding balance per month,
or the maximum rate permitted by law, whichever is lower, from the date such
payment was due until the date paid, and/or (b) We may condition future
subscription renewals and Order Forms on payment terms shorter than those
specified in Section 6.2 (Invoicing and Payment).
6.4.
Suspension
of Service and Acceleration. If any
amount owing by You under this or any other agreement for Our services is 30 or
more days overdue (or 10 or more days overdue in the case of amounts You have
authorized Us to charge to Your credit card), We may, without limiting Our
other rights and remedies, accelerate Your unpaid fee obligations under such
agreements so that all such obligations become immediately due and payable, and
suspend Our services to You until such amounts are paid in full. We will give You at least 7 days prior notice
that Your account is overdue, in accordance with Section 13.2 (Manner of Giving
Notice), before suspending services to You.
6.5.
Payment
Disputes. We shall not exercise Our
rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and
Acceleration) if You are disputing the applicable charges reasonably and in
good faith and are cooperating diligently to resolve the dispute.
6.6.
Taxes. Unless otherwise stated, Our fees do not include any
taxes, levies, duties or similar governmental assessments of any nature,
including but not limited to value-added, sales, use or withholding taxes,
assessable by any local, state, provincial, federal or foreign jurisdiction
(collectively, "Taxes"). You are responsible for paying all
Taxes associated with Your purchases hereunder. If We have the legal obligation
to pay or collect Taxes for which You are responsible under this paragraph, the
appropriate amount shall be invoiced to and paid by You, unless You provide Us
with a valid tax exemption certificate authorized by the appropriate taxing
authority. For clarity, We are solely responsible for taxes assessable against
it based on Our income, property and employees.
7.1.
Reservation
of Rights in Services. Subject to the
limited rights expressly granted hereunder, We reserve all rights, title and
interest in and to the Services, including all related intellectual property
rights. No rights are granted to You hereunder other than as expressly set
forth herein.
7.2.
Restrictions. You shall not (i) permit any third party to access
the Services except as permitted herein or in an Order Form, (ii) create
derivative works based on the Services except as authorized herein, (iii) copy,
frame or mirror any part or content of the Services, other than copying or
framing on Your own intranets or otherwise for Your own internal business
purposes, (iv) reverse engineer the Services, or (v) access the Services in
order to (a) build a competitive product or service, or (b) copy any features,
functions or graphics of the Services.
7.3.
Your Courses
and Content. If You, a third party acting on Your behalf, or a User
creates courses or add content using the Services, You authorize Us to host,
copy, transmit, display and adapt such courses and content, solely as necessary
for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right,
title or interest from You or Your licensors under this Agreement in or to such
courses or content, including any intellectual property rights therein.
7.4.
Your
Data. Subject to the limited rights granted by You hereunder, We acquire no
right, title or interest from You or Your licensors under this Agreement in or
to Your Data, including any intellectual property rights therein.
7.5.
Suggestions. We shall have a royalty-free, worldwide, irrevocable,
perpetual license to use and incorporate into the Services any suggestions,
enhancement requests, recommendations or other feedback provided by You,
including Users, relating to the operation of the Services.
8.1.
Definition
of Confidential Information. As used
herein, "Confidential Information" means all confidential
information disclosed by a party ("Disclosing Party") to the
other party ("Receiving Party"), whether orally or in writing,
that is designated as confidential or that reasonably should be understood to
be confidential given the nature of the information and the circumstances of
disclosure. Your Confidential Information shall include Your Data; Our
Confidential Information shall include the Services; and Confidential
Information of each party shall include the terms and conditions of this
Agreement and all Order Forms, as well as business and marketing plans,
technology and technical information, product plans and designs, and business
processes disclosed by such party. However, Confidential Information (other
than Your Data) shall not include any information that (i) is or becomes
generally known to the public without breach of any obligation owed to the
Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure
by the Disclosing Party without breach of any obligation owed to the Disclosing
Party, (iii) is received from a third party without breach of any obligation
owed to the Disclosing Party, or (iv) was independently developed by the
Receiving Party.
8.2.
Protection
of Confidential Information. The
Receiving Party shall use the same degree of care that it uses to protect the
confidentiality of its own confidential information of like kind (but in no
event less than reasonable care) (i) not to use any Confidential Information of
the Disclosing Party for any purpose outside the scope of this Agreement, and
(ii) except as otherwise authorized by the Disclosing Party in writing, to
limit access to Confidential Information of the Disclosing Party to those of
its and its Affiliates' employees, contractors and agents who need such access
for purposes consistent with this Agreement and who have signed confidentiality
agreements with the Receiving Party containing protections no less stringent
than those herein. Neither party shall disclose
the terms of this Agreement or any Order Form to any third party other than its
Affiliates and their legal counsel and accountants without the other party's
prior written consent.
8.3.
Compelled
Disclosure. The Receiving Party may
disclose Confidential Information of the Disclosing Party if it is compelled by
law to do so, provided the Receiving Party gives the Disclosing Party prior
notice of such compelled disclosure (to the extent legally permitted) and
reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party
wishes to contest the disclosure. If the Receiving Party is compelled by law to
disclose the Disclosing Party's Confidential Information as part of a civil
proceeding to which the Disclosing Party is a party, and the Disclosing Party
is not contesting the disclosure, the Disclosing Party will reimburse the
Receiving Party for its reasonable cost of compiling and providing secure
access to such Confidential Information.
9.1.
Our
Warranties. We warrant that (i) We
have validly entered into this Agreement and have the legal power to do so,
(ii) the Services shall perform materially in accordance with the User Guide,
(iii) subject to Section 5.3 (Integration with Non-dominKnow Services), the
functionality of the Services will not be materially decreased during a
subscription term, and (iv) We will not transmit Malicious Code to You,
provided it is not a breach of this subpart (v) if You or a User uploads a file
containing Malicious Code into the Services and later downloads that file
containing Malicious Code. For any breach of a warranty above, Your exclusive
remedy shall be as provided in Section 12.3 (Termination for Cause) and Section
12.4 (Refund or Payment upon Termination) below.
9.2.
Your
Warranties. You warrant that You have
validly entered into this Agreement and have the legal power to do so.
9.3.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.4.
Non-GA
Services. From time to time We may invite You to try, at no
charge, Our products or services that are not generally available to Our
customers ("Non-GA Services").
You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly
designated as beta, pilot, limited release, developer preview, non-production
or by a description of similar import.
Non-GA Services are provided for evaluation purposes and not for
production use, are not supported, may contain bugs or errors, and may be
subject to additional terms. NON-GA
SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED
"AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any
time in Our sole discretion and may never make them generally available.
10.1.
Indemnification
by Us. We shall defend You against
any claim, demand, suit, or proceeding made or brought against You by a third
party alleging that the use of the Services as permitted hereunder infringes or
misappropriates the intellectual property rights of a third party (a "Claim
Against You"), and shall indemnify You for any damages, attorney fees
and costs finally awarded against You as a result of, and for amounts paid by
You under a court-approved settlement of, a Claim Against You; provided that
You (a) promptly give Us written notice of the Claim Against You; (b) give Us
sole control of the defense and settlement of the Claim Against You (provided
that We may not settle any Claim Against You unless the settlement
unconditionally releases You of all liability); and (c) provide to Us all
reasonable assistance, at Our expense.
In the event of a Claim Against You, or if We reasonably believe the
Services may infringe or misappropriate, We may in Our discretion and at no
cost to You (i) modify the Services so that they no longer infringe or
misappropriate, without breaching Our warranties under "Our Warranties" above, (ii)
obtain a license for Your continued use of the Services in accordance with this
Agreement, or (iii) terminate Your User subscriptions for such Services upon 30
days' written notice and refund to You any prepaid fees covering the remainder
of the term of such User subscriptions after the effective date of termination.
10.2.
Indemnification
by You. You shall defend Us against
any claim, demand, suit or proceeding made or brought against Us by a third
party alleging that Your Data, or Your use of the Services in breach of this
Agreement, infringes or misappropriates the intellectual property rights of a
third party or violates applicable law (a "Claim Against Us"),
and shall indemnify Us for any damages, attorney fees and costs finally awarded
against Us as a result of, or for any amounts paid by Us under a court-approved
settlement of, a Claim Against Us; provided that We (a) promptly give You
written notice of the Claim Against Us; (b) give You sole control of the
defense and settlement of the Claim Against Us (provided that You may not
settle any Claim Against Us unless the settlement unconditionally releases Us
of all liability); and (c) provide to You all reasonable assistance, at Your
expense.
10.3.
Exclusive
Remedy. This Section 10 (Mutual
Indemnification) states the indemnifying party's sole liability to, and the
indemnified party's exclusive remedy against, the other party for any type of
claim described in this Section.
11.1.
Limitation
of Liability. NEITHER PARTY'S
LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS
AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY)
SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE
12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER
PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
(WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE
TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT
OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2.
Exclusion
of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT,
TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL
NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12.1.
Term of
Agreement. This Agreement commences
on the date You accept it and continues until all User subscriptions granted in
accordance with this Agreement have expired or been terminated. If You elect to
use the Services for a free trial period and do not purchase a subscription
before the end of that period, this Agreement will terminate at the end of the
free trial period.
12.2.
Term of
Purchased User Subscriptions. User
subscriptions purchased by You commence on the start date specified in the
applicable Order Form and continue for the subscription term specified therein.
Except as otherwise specified in the applicable Order Form, all User subscriptions
shall automatically renew for additional periods equal to the expiring
subscription term or one year (whichever is shorter), unless either party gives
the other notice of non-renewal at least 30 days before the end of the relevant
subscription term. The per-unit pricing during any such renewal term shall be
the same as that during the prior term unless We have given You written notice
of a pricing increase at least 60 days before the end of such prior term, in
which case the pricing increase shall be effective upon renewal and
thereafter. Any such pricing increase
shall not exceed 7% of the pricing for the relevant Services in the immediately
prior subscription term, unless the pricing in such prior term was designated
in the relevant Order Form as promotional or one-time.
12.3.
Termination
for Cause. A party may terminate this
Agreement for cause: (i) upon 30 days written notice to the other party of a
material breach if such breach remains uncured at the expiration of such
period, or (ii) if the other party becomes the subject of a petition in
bankruptcy or any other proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of creditors.
12.4.
Refund or
Payment upon Termination. Upon any
termination for cause by You, We shall refund You any prepaid fees covering the
remainder of the term of all subscriptions after the effective date of
termination. Upon any termination for cause by Us, You shall pay any unpaid
fees covering the remainder of the term of all Order Forms after the effective
date of termination. In no event shall any termination relieve You of the
obligation to pay any fees payable to Us for the period prior to the effective
date of termination.
12.5.
Return of
Your Data. Upon request by You made
within 30 days after the effective date of termination of a Purchased Services
subscription, We will make available to You the ability to export your content
as web compliant or SCORM compliant content. After such 30-day period, We shall
have no obligation to maintain or provide any of Your Data and shall
thereafter, unless legally prohibited, delete all of Your Data in Our systems
or otherwise in Our possession or under Our control.
12.6.
Surviving
Provisions. Section 6 (Fees and
Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality),
9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability),
12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who
You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14
(General Provisions) shall survive any termination or expiration of this
Agreement.
13.1.
General. Who You are contracting with under this Agreement,
who You should direct notices to under this Agreement, what law will apply in
any lawsuit arising out of or in connection with this Agreement, and which
courts can adjudicate any such lawsuit, depend on where You are domiciled.
Disputes will be adjudicated in Ontario, Canada.
13.2.
Manner of
Giving Notice. Except as otherwise
specified in this Agreement, all notices, permissions and approvals hereunder
shall be in writing and shall be deemed to have been given upon: (i) personal
delivery, (ii) the second business day after mailing, (iii) the second business
day after sending by confirmed facsimile, or (iv) the first business day after
sending by email (provided email shall not be sufficient for notices of termination
or an indemnifiable claim). Billing-related notices
to You shall be addressed to the relevant billing contact designated by You.
All other notices to You shall be addressed to the relevant Services system
administrator designated by You.
13.3.
Agreement
to Governing Law and Jurisdiction.
Each party agrees to the applicable governing law above without regard to
choice or conflicts of law rules, and to the exclusive jurisdiction of the
applicable courts above.
13.4.
Waiver of
Jury Trial. Each party hereby waives
any right to jury trial in connection with any action or litigation in any way
arising out of or related to this Agreement.
14.1.
Export
Compliance. The Services, other
technology We make available, and derivatives thereof may be subject to export
laws and regulations of Canada and other jurisdictions. Each party represents
that it is not named on any Canadian government denied-party list. You shall
not permit Users to access or use Services in a Canadian sanctioned country
(list available at http://www.international.gc.ca/sanctions) or in violation of any Canadian export law or
regulation.
14.2.
Anti-Corruption.
You have not received or been offered
any illegal or improper bribe, kickback, payment, gift, or thing of value from
any of Our employees or agents in connection with this Agreement. Reasonable
gifts and entertainment provided in the ordinary course of business do not
violate the above restriction. If You
learn of any violation of the above restriction, You will use reasonable
efforts to promptly notify us (info at dominknow dot com).
14.3.
Relationship
of the Parties. The parties are
independent contractors. This Agreement does not create a partnership,
franchise, joint venture, agency, fiduciary or employment relationship between
the parties.
14.4.
No
Third-Party Beneficiaries. There are
no third-party beneficiaries to this Agreement.
14.5.
Waiver. No failure or delay by either party in exercising any
right under this Agreement shall constitute a waiver of that right.
14.6.
Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be contrary to law, the provision shall be
modified by the court and interpreted so as best to accomplish the objectives
of the original provision to the fullest extent permitted by law, and the
remaining provisions of this Agreement shall remain in effect.
14.7.
Attorney
Fees. You shall pay on demand all of
Our reasonable attorney fees and other costs incurred by Us to collect any fees
or charges due Us under this Agreement following Your breach of Section 6.2
(Invoicing and Payment).
14.8.
Assignment. Neither party may assign any of its rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party (not to be unreasonably withheld).
Notwithstanding the foregoing, either party may assign this Agreement in its entirety
(including all Order Forms), without consent of the other party, to its
Affiliate or in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not involving
a direct competitor of the other party. A party's sole remedy for any purported
assignment by the other party in breach of this paragraph shall be, at the
non-assigning party's election, termination of this Agreement upon written
notice to the assigning party. In the event of such a termination, We shall
refund to You any prepaid fees covering the remainder of the term of all
subscriptions after the effective date of termination. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the parties,
their respective successors and permitted assigns.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
