This License and Services Agreement ("LSA") is entered into as of the date of last signature (the “Effective Date”) by and between NAVEX Global, Inc., a Delaware corporation, having its principal place of business at 5500 Meadows Road, Suite 500, Lake Oswego, Oregon 97035 (“NAVEX Global”), and the entity signing the Order Form into which this LSA is incorporated (“Client”). In consideration of the mutual covenants and conditions contained in this License and Services Agreement and intending to be legally bound, the parties agree as follows:
1.1 “Agreement” means this LSA, and all Order Forms, Change Orders, and attachments incorporated hereunder.
1.2 “Applicable Law” means any law, rule, or regulation applicable to a party.
1.3 “Affiliate” means an entity controlling, controlled by, or under common control with a party to this LSA, where “control” means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
1.4 “Change Order” is a simplified ordering document used for one-time, non-recurring fees.
1.5 “Client” means the entity that has entered into this LSA with NAVEX Global and includes any Affiliates authorized to use the Products and Services in accordance with Section 2.3 (Affiliates).
1.6 “Client Data” means any data and information that Client provides, generates, transfers, or makes available to NAVEX Global under the Agreement, whether in printed, electronic, or other format.
1.7 “Client Property” shall include all of Client’s copyrights, trademarks, patent rights, and other intellectual property rights or proprietary rights recognized in any jurisdiction in the world in any and all Client Data, materials, and logos provided under the Agreement, and any and all derivative works flowing from any of the foregoing.
1.8 “Confidential Information” means any information disclosed at any time by either party, its directors, officers, employees, and agents (collectively, “Representatives”), to the other party or its Representatives in anticipation of or during the parties' relationship, either directly or indirectly, in writing, orally, or by inspection of tangible objects that pertain to such party’s business, including, without limitation, information concerning technical, marketing, planned functionality, market strategies, financial, employee, planning, product roadmaps, service or product purchase, performance agreements and documentation, performance results, pricing, and other confidential or proprietary information, including information a reasonable person would understand to be confidential or proprietary. Confidential Information of either party will not, however, include any information that (i) was publicly known and that the disclosing party made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and that the disclosing party made generally available after disclosure to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party without a breach of any third party’s obligations of confidentiality at the time of disclosure by the disclosing party, the burden of proof of prior possession being on the party asserting such prior possession; (iv) the receiving party obtains from a third party without a breach of such third party’s obligations of confidentiality; or (v) the receiving party independently develops without use of or reference to the disclosing party’s Confidential Information, the burden of proof of independent development being on the party asserting such independent development.
1.9 “Content” means materials that NAVEX Global provides or posts in connection with the Products and Services, including, without limitation, training courses, text, images, graphics, sound recordings, and videos and modifications, enhancements, or new versions thereof.
1.10 “Error” means a material failure of a Product to conform to its functional specifications, as described in the Technical Documentation, that Client reports to NAVEX Global and that NAVEX Global is able to replicate.
1.11 “Exclusions” means (i) components or content (including in combination with the Products or Services) that NAVEX Global does not provide; (ii) unauthorized use or use of the Products or Services other than in accordance with the Technical Documentation and the Agreement; or (iii) viruses, malicious software, or other disruptive programs or applications that Client or its agents or Users introduce or which are introduced as a result of any of Client’s uses of the Products or Services.
1.12 “Indemnified Party” means a party with a valid claim for indemnification pursuant to Section 8.0 (Indemnification) and who seeks indemnification from the other party pursuant to Section 8.3 (Mutual Obligations).
1.13 “Indemnifying Party” means a party from whom indemnification is being sought pursuant to Section 8.3 (Mutual Obligations).
1.14 “Initial Term” means the initial period of time in which NAVEX Global provides Services to Client.
1.15 “License and Services Agreement” and “LSA” each mean this document (exclusive of Order Forms and Change Orders), which establishes the general terms and conditions to which the parties have agreed in order to facilitate the provision of Products or Services.
1.16 “Legal Process” means a subpoena, request for production of documents, court order, or requirement of a governmental agency to disclose any information or respond to an official inquiry.
1.17 “License Utilization Report” means a report which Client provides to NAVEX Global that shall provide details of the total number of actual Users of the Products and Services during the period for which the License Utilization Report covers. For each year of the Term, the License Utilization Report shall show the total number of actual Users for that year of the Term. For the Term, the License Utilization Report shall show the total number of actual Users for the entirety of that Term. A License Utilization Report shall apply to Client’s use of Products only; such License Utilization Report will not be required for Client’s use of Services.
1.18 “Losses” means costs and expenses (including reasonable attorneys’ fees and disbursements), liability, and costs from suits, actions, or proceedings threatened, made, or brought by any third party in connection with any and all allegations, claims, or demands.
1.19 “NAVEX Global Intellectual Property” means any and all intellectual property recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed, or recorded, including, without limitation: inventions, technology, patents rights (including patent applications and disclosures), the Products and Services, copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, logic, coherence and methods of operation of systems, and training methodology and materials that NAVEX Global has created, acquired, or otherwise has rights in and may, in connection with the Products and the performance of Services hereunder, create, employ, provide, modify, acquire, or otherwise obtain rights in.
1.20 “Notice” means written notification to a party that shall be sent via email only, unless otherwise indicated herein. Any Notice to NAVEX Global shall be sent to email@example.com.
1.21 “Order Form” means the document(s), regardless of actual name, that the parties execute that incorporates by reference the terms and conditions of this LSA, describe Client’s order-specific information, and contain Product- and Service-specific terms, such as description of Products and Services ordered, Subscription Metrics (if applicable), and fees. The definition of “Order Form” includes Change Order.
1.22 “Product” or “Products” means NAVEX Global’s proprietary training courses and/or policy manager that are comprised of software and content that is more particularly described on and ordered by Client pursuant to an Order Form.
1.23 “Renewal Term” means a term that is equal in length to the Initial Term.
1.24 “Sanctions Investigation” means any investigation by the Office of Foreign Assets Control, Department of the Treasury (OFAC), or any other Governmental Authority pursuant to any laws that OFAC or any other Governmental Authority administer.
1.25 “Service” or “Services” means any services provided pursuant to the Agreement, which may include, but are not limited to, implementation, consulting, or other services.
1.26 “Subscription Metrics” means the limitation on usage of Products as designated and/or defined on the applicable Order Form, or the financial metric used to calculate applicable fees. Subscription Metrics are designated by a term such as the number of “users,” “employees,” “reports,” and the like.
1.27 “Support” means support for the Products in accordance with the schedule detailed in the following webpage: http://www.navexglobal.com/ClientCareProblemSupport, as NAVEX Global may update from time to time.
1.28 "Taxes” include, without limitation, any direct or indirect taxes, levies, duties, or similar governmental assessments, including value-added, use, or withholding taxes. Taxes shall not include any taxes on NAVEX Global’s net income.
1.29 “Technical Documentation” means the user instructions, release notes, manuals, and on-line help files that describe the operation of the Products in the form generally made available to NAVEX Global customers, as may be updated from time to time.
1.30 “Term” means the period of time in which NAVEX Global provides Products and Services to Client. The Initial Term and Renewal Terms are collectively referred to herein as the “Term”.
1.31 “User” means any employee or non-employee who Client authorizes to use the Products or Services and is accounted for in the Subscription Metrics of an Order Form.
2.0 Purpose and Scope.
2.1 License and Services Agreement. This LSA establishes the general terms and conditions to which the parties have agreed with respect to NAVEX Global’s provision of the Products and Services to Client. Additional Product- and Service-specific terms and conditions are set forth in one (1) or more Order Forms.
2.2 Order Forms. Client’s execution of an Order Form constitutes a binding commitment to purchase the items specified in such Order Form under the terms and conditions of this LSA and such Order Form.
2.3 Affiliates. Client may authorize its Affiliates’ use of the Products or Services, provided (i) such Affiliates agree in writing to be subject to the Agreement, and (ii) the combined use of the Products and Services hereunder by Client and its Affiliates shall not in any event exceed the Subscription Metrics authorized under the applicable Order Form(s). Client guarantees any such Affiliate’s performance of all terms and obligations of the Agreement and agrees to comply with any injunction arising out of any Affiliate’s breach of the Agreement. NAVEX Global may enforce applicable terms and obligations of the Agreement against Client, Affiliates, or both.
2.4 Order of Precedence. To the extent any terms and conditions of this LSA conflict with the terms and conditions of an Order Form, the terms and conditions of the Order Form shall control, unless otherwise stated in the Order Form.
2.5 Definitions. Unless defined in this LSA, capitalized terms have the meaning ascribed to them in Section 1.0 (Definitions).
3.0 License Grant and Intellectual Property Rights.
3.1 Generally. Subject to Client’s compliance with the Agreement and timely payment of the applicable fees, NAVEX Global shall provide the Products and Services described in any Order Form(s).
3.2 Client Property and Data. Client shall retain all right, title, and interest in Client Property. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use of all such Client Property. Client grants NAVEX Global, for the Term, a limited, non-exclusive, worldwide, non-transferable, royalty-free license to reproduce, transmit, perform, copy, display, create derivative works of (solely with respect to Client Data and only for formatting purposes), and otherwise use any and all Client Property for the sole and limited purpose of delivering the Products and Services to Client.
3.3 NAVEX Global License Grant. During the Term, and subject to timely payment of applicable fees and Client’s compliance with the Agreement, NAVEX Global grants Client, and Client accepts, a non-exclusive, worldwide, non-transferable, non-assignable, and non-sublicensable limited license to install and use the Products on the learning management system set forth in an Order Form. The foregoing licenses are solely for Client’s internal business operations. Affiliates may use the Products subject to this LSA’s Section 2.3 (Affiliates). All Products, Services, and other materials that NAVEX Global provides in the performance of the Products and Services, and any and all other NAVEX Global Intellectual Property, including any copies or derivative works of the foregoing, will at all times remain the exclusive, sole, and absolute property of NAVEX Global or its licensors. All Products are licensed and not sold to Client. Client does not acquire any right, title, or interest in or to such equipment, materials, or NAVEX Global Intellectual Property. All rights not expressly granted to Client are reserved exclusively by NAVEX Global and its licensors; there are no implied rights. Client may not obscure, alter, or remove any copyright, patent, trademark, service mark, or proprietary rights notices on any NAVEX Global materials. Client agrees that any use of any of NAVEX Global’s trademarks or service marks will inure solely to the benefit of NAVEX Global and that Client will not at any time acquire any rights in NAVEX Global’s trademarks or service marks. Client shall neither take any action that jeopardizes NAVEX Global’s Intellectual Property Rights in the Products and Services, nor acquire any right in the Products and Services except for the limited-license right specified in this Section 3.3.
3.4 Access. Client is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access any Products, including, without limitation, internet access and adequate bandwidth. Access is limited to the version of the Product that NAVEX Global originally provided, unless NAVEX Global has provided Client with an upgraded and/or updated version and, in such case, access is limited to that updated and/or upgraded version. Aggregate use of the Product by Client and any Affiliate, subject to Section 2.3 (Affiliates), shall at no time exceed the Subscription Metrics granted herein. Client shall be responsible and liable for all acts and/or omissions of any Users.
3.5 Acceptable Use. Client acknowledges and agrees that NAVEX Global does not monitor or evaluate Client Data transmitted through the Products and Services and that NAVEX Global shall not be responsible for the content of any such Client Data. Client shall use the Products and Services exclusively for authorized and legal purposes, consistent with all Applicable Laws. Client is solely responsible and liable for (i) making sure that the disclosure and use of data, content, and information that Client provides to NAVEX Global does not violate any Applicable Law or infringe upon the rights of any third party; (ii) ensuring the appropriate use of any reports and other materials prepared by NAVEX Global in a manner that will not violate any Applicable Law or infringe upon the rights of any third party; and (iii) all acts and omissions of any Users. Client agrees not to post or upload any content or data which (a) violates the rights of others, such as data that infringes on any intellectual property rights or violates any right of privacy or publicity, or (b) otherwise violates any Applicable Law.
3.6 Restrictions. Client shall not itself, or through any Affiliate, employee, consultant, contractor, agent, or other third party, (i) sell, resell, distribute, host, lease, rent, license, or sublicense, in whole or in part, the Products and Services; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Products and Services, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge, or make available the Products and Services to any individual or entity other than Users; (iv) write or develop any derivative works based upon the Products and Services; (v) modify, adapt, tamper with, or otherwise make any changes to the Products and Services or any part thereof; (vi) obliterate, alter, or remove any proprietary or intellectual property notices from the Products and Services; (vii) create internet links to or from the Products and Services, or frame or mirror any Content; (viii) use the Products and Services to provide processing services to third parties, or otherwise use the same on a service bureau basis; (ix) use the Products and Services in a manner not authorized under the Technical Documentation or the Agreement, or in violation of any Applicable Law; or (x) use the Products and Services, or permit them to be used, for purposes of evaluation, benchmarking, or other comparative analysis intended for external publication without NAVEX Global’s prior written consent. Despite the foregoing, pursuant to Applicable Law, Client may use NAVEX Global’s name in internal or regulatory communications pertaining to Client’s agreement to use NAVEX Global’s Products or Services. 3.7 Commercial Item. The Products and any accompanying Technical Documentation and related software were developed by NAVEX Global and its suppliers at private expense and are deemed to be a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Use, duplication, and disclosure by civilian agencies of the U.S. Government will be in accordance with FAR 52.227-19(c) or other agency data rights provisions, as may be applicable.
4.1 Support. During the Term of the Products, NAVEX Global will provide ongoing Support. However, NAVEX Global is not under any obligation to provide Support with respect to (i) Products that have been altered or modified by anyone other than NAVEX Global or its licensors; (ii) Products used other than in accordance with the Technical Documentation and the Agreement; (iii) discrepancies that do not significantly impair or affect the operation of the Products; or (iv) errors and/or malfunctions caused by any systems or programs not supplied by NAVEX Global.
4.2 Cooperation. Client shall provide NAVEX Global with good faith cooperation as NAVEX Global may reasonably require or request from time to time in order to provide the Products and Services, including, without limitation, providing security access, information, and software interfaces to Client’s applications and Client personnel. Client acknowledges and agrees that NAVEX Global’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Products or Services. NAVEX Global shall be entitled to rely on all decisions and approvals of Client.
5.0 Fees and Payment.
5.1 Fees. Fees are set forth in the applicable Order Form and are based on the applicable Subscription Metrics. All fees are in United States Dollars and are non-refundable and non-cancellable. Beginning with the second annual period of the Term, NAVEX Global may, upon sixty (60) calendar days’ prior Notice, increase the fees, effective as of each annual anniversary of the Order Form effective date. All invoices and fee increase notices from NAVEX Global shall be sent via email to the email address indicated in the applicable Order Form, unless otherwise specified herein.
5.2 Payment. Unless otherwise specified in the Order Form, all payment obligations start from the execution of the Order Form, with payment of all an Order Form’s fees due within thirty (30) calendar days following the invoice date. Except as otherwise expressly specified in the Order Form, Client shall send such payment to the address included on the invoice, and such payments shall be made in United States Dollars. Interest accrues on past due balances at the lesser of (i) one and one-half percent (1.5%) per month, and (ii) the highest rate allowed by law until paid. Failure to make timely payments shall be a material breach of the Agreement. If any fees that are not disputed by Client in good faith are more than thirty (30) calendar days past due, NAVEX Global will have the right, in addition to all other rights and remedies available to it, to suspend delivery of or access to the Products and Services upon the expiration of ten (10) calendar days’ Notice. Client shall reimburse NAVEX Global for expenses incurred, including interest, court costs, and reasonable attorneys’ fees, in collecting amounts due to NAVEX Global hereunder that are not under good faith dispute by Client. NAVEX Global will be entitled to require Client to pay all outstanding fees in full before NAVEX Global renders any additional performance and before NAVEX Global allows Client to purchase any additional Products or Services.
5.3 Taxes. Except as otherwise specified in an Order Form and except for any taxes on NAVEX Global’s net income, all fees for Products and Services exclude Taxes. Client is responsible for paying all Taxes associated with Client’s purchases hereunder. If NAVEX Global has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides NAVEX Global with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.4 Subscription Metrics. Client may increase its Subscription Metrics at any time during the current Term at then-prevailing prices. Additional Subscription Metrics will be coterminous with the current Term. Client may decrease Subscription Metrics at any time, but NAVEX Global shall not issue any refunds or reduce fees payable through the end of the current Term. Subscription Metrics shall apply to Client’s use of Products only; Subscription Metrics shall not apply to Client’s use of Services.
5.5 Additional Product and Service Fees. Additional Subscription Metrics must be purchased at NAVEX Global’s then-prevailing prices in the event actual usage exceeds the current Subscription Metrics. At all times during the Term, Client shall be responsible for ensuring sufficient Subscription Metrics to accommodate one hundred percent (100%) of its usage of the Products or Services.
5.6 Travel and Lodging Expenses. NAVEX Global’s reasonable travel and lodging expenses that NAVEX Global incurs in the performance of Services will be invoiced separately, in accordance with NAVEX Global’s applicable travel policy.
6.0 Term and Termination.
6.1 LSA Term. This LSA shall remain in effect until terminated, as set forth herein, or until the expiration or termination of all Order Forms.
6.2 Product and Services Term. The Initial Term for each Product and Service purchased, and any renewal rights or extensions, will be as set forth in the applicable Order Form. Unless otherwise provided in the applicable Order Form, the Term of a Product or Service shall automatically renew for the same duration as the immediately preceding Term unless a party gives written notice to the other party of its intention not to renew at least thirty (30) calendar days prior to the expiration of the current Term.
6.3 Termination. This LSA may be terminated (i) by either party if the other party materially breaches the Agreement and does not cure the breach within thirty (30) calendar days after receiving Notice thereof from the non-breaching party (except for delinquent payments which are addressed in Section 5.0 (Fees and Payment)); (ii) as set forth in Section 7.4 (Infringement Remedies); (iii) as set forth in Section 12.6 (Compliance with Law); or (iv) if the other party becomes insolvent (generally unable to pay its debts as they become due) or the subject of a bankruptcy, conservatorship, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors.
6.4 Partial Termination. Where a party has rights to terminate this LSA pursuant to Section 6.3 (Termination), the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order Form. Order Forms that are not terminated shall continue in full force and effect under the terms of this LSA.
6.5 Effects of Termination or Partial Termination. Upon any termination, without prejudice to any other rights or remedies that the parties may have, (i) all obligations required hereunder shall immediately cease; (ii) all Services and licenses to the Products shall immediately terminate and Customer shall immediately delete all copies of any Product licensed hereunder; and (iii) Client shall promptly certify to NAVEX Global in writing that Client has fully performed its obligations under this Section 6.5, except as otherwise provided. Each party may retain, subject to this LSA, copies of Confidential Information required for internal record keeping purposes and for compliance with Applicable Law. If NAVEX Global terminates the Agreement or an Order Form for Client’s non-payment, Client agrees that it shall remain responsible for all outstanding fees payable to NAVEX Global for the current Term. Client acknowledges that such amounts are liquidated damages reflecting a reasonable measure of actual damages and not a penalty.
7.0 Warranties and Disclaimers.
7.1 NAVEX Global Warranty. NAVEX Global warrants that (i) for a period of ninety (90) calendar days after NAVEX Global makes the Products available to Client, the Products, when used in accordance with the current Technical Documentation, will perform in all material respects, as specified in such Technical Documentation; (ii) all Services will be performed in a professional manner, in accordance with industry standards; and (iii) NAVEX Global will not design its systems to include any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines,” or other similar computer software routines. In the event of any breach of Section 7.1(i), NAVEX Global shall diligently endeavor to remedy any Errors during the warranty period; the foregoing shall be Client’s sole remedy, and shall be NAVEX Global’s sole liability, for any uncured breach of Section 7.1(i). NAVEX Global shall not be obligated to correct Errors resulting from any Exclusions. NAVEX Global represents and warrants that, to its knowledge, the Products, Services, and the elements thereof will not infringe the intellectual property or proprietary rights of any third party. Notwithstanding the warranty provisions in this Section 7.0, NAVEX Global shall have no warranty obligations with respect to any part or parts of the Products or Services which have been damaged by improper installation or operation, alteration, or improper storage, or if Client or any third party has modified or attempted to modify (including adding additional functionality and/or creating extensions to or modifying content in) the Products or Services, or if the damage has occurred due to causes external to the Products or Services.
7.2 Client Warranties. Client represents and warrants that (i) Client and Users are authorized to provide all Client Data and any other data and information submitted to the Products and Services; (ii) Client’s and Users’ use of the Products and Services and provision of Client Data will comply with all Applicable Laws; (iii) NAVEX Global’s use of Client Data in providing the Services will not infringe the intellectual property or other proprietary rights of any third party; and (iv) Client will not modify or create derivative works based on the Products and Services, or attempt to decode, decipher, decompile, disassemble, or reverse engineer the Products and Services or any deliverables.
7.3 Mutual Warranties. Each party represents and warrants the following: (i) the execution, delivery, and performance of this LSA has been and shall be duly authorized by the executing party; (ii) the executing party’s performance of its obligations will not conflict with, result in a breach of, or constitute a default under any other material agreement to which that party is bound; and (iii) the executing party is in material compliance with all Applicable Laws with regard to its obligations under this LSA.
7.4 Infringement Remedies. If the Products or Services infringe or if NAVEX Global believes that the Products or Services infringe on the intellectual property or proprietary rights of a third party, NAVEX Global may, in its sole discretion, (i) modify the Products or Services to be non-infringing; (ii) obtain for Client a license to continue using the affected Products or Services; or (iii) if neither (i) nor (ii) are practical in NAVEX Global’s sole judgment, terminate the affected Products or Services and return to Client the unused portion of any fees paid for the affected Products or Services. Subject to the parties also meeting their express indemnification obligations under this LSA, NAVEX Global’s satisfactory performance of any one or all of the remedies set forth in the preceding sentence shall be Client’s sole and exclusive remedy for NAVEX Global’s breach of the infringement warranty or for any damages incurred from early termination of the applicable Order Form due to a third-party infringement claim.
7.5 Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 7.5 AND THOSE EXPRESSLY SET FORTH IN AN ORDER FORM, ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND NAVEX GLOBAL DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE PRODUCTS, SERVICES, DELIVERABLES, MARKS, OR NAVEX GLOBAL’S PERFORMANCE UNDER THE AGREEEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, NAVEX GLOBAL MAKES NO PROMISE (i) AS TO THE SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE PRODUCTS AND SERVICES; (ii) AS TO ANY THIRD-PARTY PROVIDER OR ANY OF ITS PRODUCTS AND SERVICES, WHETHER OR NOT NAVEX GLOBAL MAY HAVE DESIGNATED IT OR ITS PRODUCTS AND SERVICES AS “CERTIFIED,” “VALIDATED,” OR OTHERWISE, EXCEPT ANY SUBCONTRACTORS THAT NAVEX GLOBAL HAS CONTRACTED TO PERFORM SERVICES IN ACCORDANCE WITH THIS LSA AND APPLICABLE ORDER FORM; (iii) THAT THE USE OF THE PRODUCTS AND SERVICES SHALL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; OR (iv) THAT ALL ERRORS OR DEFECTS SHALL BE CORRECTED. NAVEX GLOBAL EXPRESSLY DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES MEET THE SPECIFIC REQUIREMENTS OF ANY FEDERAL, PROVINCIAL, STATE, OR LOCAL LAWS, REGULATIONS, OR GUIDELINES. CLIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCTS AND SERVICES PROVIDED HEREUNDER TO ACHIEVE ITS INTENDED RESULTS.
7.6 Additional Disclaimers.
i. LEGAL SERVICES. NAVEX GLOBAL IS NOT ENGAGED IN THE PRACTICE OF LAW. IN THE PROVISION OF PRODUCTS AND SERVICES, CERTAIN ISSUES MAY ARISE THAT ARE QUASI-LEGAL IN NATURE. ANY STATEMENTS OR ASSISTANCE NAVEX GLOBAL PROVIDES IN THESE MATTERS SHOULD BE INTERPRETED AS OPINIONS OR ADVICE CONCERNING BUSINESS ISSUES TO BE CONSIDERED IN CONNECTION WITH THE PRODUCTS AND SERVICES. CLIENT REPRESENTS AND WARRANTS IT IS NOT RELYING UPON NAVEX GLOBAL TO PROVIDE LEGAL SERVICES.
ii. USE. CLIENT AGREES AND ACKNOWLEDGES THAT IT IS FULLY RESPONSIBLE FOR ITS USE OF THE PRODUCTS AND SERVICES. NAVEX GLOBAL EXPRESSLY DISCLAIMS ANY LIABILITY AS A RESULT OF CLIENT’S USE OF THE PRODUCTS AND SERVICES OR CLIENT’S ACTIONS OR INACTIONS WITH RESPECT TO ANY INFORMATION DERIVED THEREFROM, EXCEPT WHERE SUCH LIABILITY FIRST AROSE AS A DIRECT RESULT OF NAVEX GLOBAL’S (a) MATERIAL BREACH OF THIS LSA, OR (b) GROSSLY NEGLIGENT ACT OR OMISSION IN DELIVERING THE PRODUCTS AND SERVICES. NAVEX GLOBAL WILL NOT BE RESPONSIBLE FOR PAYMENT OF ANY FINES ASSESSED AGAINST CLIENT OR ITS USERS BY ANY REGULATORY AUTHORITY FOR CLIENT’S FAILURE TO COMPLY WITH STATUTORY OR REGULATORY REQUIREMENTS OF ANY KIND.
8.1 By NAVEX Global. NAVEX Global will indemnify and defend Client and its officers, directors, employees, and agents against any and all Losses to the extent such Losses relate to or arise from a claim that the Products or Services infringe or misappropriate any third-party intellectual property rights. NAVEX Global’s obligations in this Section 8.1 do not apply (i) to the extent that the allegedly infringing Products or Services, portions or components thereof, or modifications thereto result from any change made by Client or any third party for Client; (ii) if the infringement claim could have been avoided by using an unaltered current version of the Products or Services that NAVEX Global provided to Client; (iii) to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by NAVEX Global, or any material from a third-party portal or other external source that is accessible to Client within or from the Products or Services (e.g., a third-party Web page accessed via a hyperlink) or a third-party product; (iv) to the extent that an infringement claim is based upon the combination of any material with any products or services not provided by NAVEX Global; or (v) to the extent that an infringement claim is caused by Client providing to NAVEX Global materials, designs, know-how, software, or other intellectual property with instructions to NAVEX Global to use the same in connection with the Products or Services.
8.2 By Client. Client will indemnify and defend NAVEX Global and its officers, directors, employees, and agents against any and all Losses to the extent such Losses relate to or arise from (i) a claim that Client Property infringes or misappropriates any third-party intellectual property rights; (ii) from all Taxes for which Client is liable; (iii) Client’s breach of Section 7.3 (Mutual Warranties); or (iv) Client’s use of the Products or Services, provided that such use is the sole and proximate cause of the request for indemnification under this subsection.
8.3 Mutual Obligations. The Indemnifying Party shall provide indemnification to the Indemnified Party under Section 8.1 (By NAVEX Global) and 8.2 (By Client) of this LSA, as the case may be, only on the following conditions. The Indemnified Party must promptly provide the Indemnifying Party with Notice of any claim and promptly tender control of the defense and settlement of any such claim to the Indemnifying Party (at the Indemnifying Party’s expense and with the Indemnifying Party’s choice of counsel); provided, however, that the failure to give such Notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall cooperate fully with the Indemnifying Party at the Indemnifying Party’s request and expense in defending or settling such claim, including, without limitation, providing any information or materials necessary for the Indemnifying Party to perform the foregoing. The Indemnifying Party will not enter into any settlement or compromise of any such claim without the Indemnified Party’s prior written consent if the settlement would require admission of fault or payment by the Indemnified Party.
9.0 Confidential Information.
9.1 Disclosure of Confidential Information. Both NAVEX Global and Client shall (i) hold all Confidential Information in confidence and use it only as permitted in connection with the Products and Services provided under the Agreement; (ii) use the same care to prevent unauthorized disclosure of the disclosing party’s Confidential Information as the receiving party uses with respect to its own Confidential Information of a similar nature and shall not, in any case, be less than the care a reasonable business person would use under similar circumstances; (iii) disclose only the Confidential Information required to comply with a court order or law and in conjunction with fulfilling obligations under Section 9.3 (Legal Process); and (iv) only disclose the Confidential Information to its Representatives who have a need to know such information in order to perform their job, have been informed of its confidential nature, and have agreed to, and are bound by, no less restrictive confidentiality obligations than those in this LSA. Each party shall be liable for their respective Representative’s breach of this LSA. Confidential Information shall not be disclosed to third parties without the other party's prior written consent unless required by Applicable Law.
9.2 Injunctive Relief. Each party acknowledges that a party’s actual or threatened breach of its confidentiality obligations under this Section 9.0 would likely cause irreparable harm to the non-breaching party that could not be fully remedied by monetary damages. Each party, therefore, agrees that the non-breaching party may seek such injunctive relief or other equitable relief as may be necessary or appropriate to prevent such actual or threatened breach without the necessity of proving actual damages. Each party hereby waives the requirement to post a bond in the event of such actual or threatened breach.
9.3 Legal Process. If either party receives notice of Legal Process, the recipient thereof shall, if permitted by law, give prompt Notice to the other party so the other party may move for a protective order or other relief. If either party is required to respond to or support such Legal Process involving the other party (but not where the parties are adverse to one another), the responding party shall be entitled to recover from the other party all reasonable costs, fees, and expenses that the responding party incurs, including reasonable time expended by internal resources and reasonable attorneys’ fees. Client agrees to cooperate fully with NAVEX Global to respond to any notice or inquiry from a third party related to Client Data or Client’s use of the Services.
10.0 Liability Exclusions and Limitations.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR (I) BREACHES OF CONFIDENTIALITY OBLIGATIONS, (II) VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, OR (IV) PAYMENT OF FEES, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR (i) BREACHES OF CONFIDENTIALITY OBLIGATIONS, (ii) VIOLATIONS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (iii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, OR (iv) PAYMENT OF FEES, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED THE AGGREGATE CONTRACT VALUE FOR THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
10.3 Time Limit for Bringing Action. No claim or action, regardless of form, arising out of the Agreement, other than a claim or action relating to a breach of confidentiality or infringement, may be brought by either party more than two (2) years after the cause of action has arisen.
11.0 Governing Law. Any dispute between the parties related to the Agreement will be governed by the substantive and procedural rules of Delaware, without regard to conflict of law principles. The parties agree to submit to the exclusive jurisdiction of and venue in the state and federal courts of Multnomah County, Oregon, and each party waives any claims it may have for forum non conveniens. The parties agree that the Uniform Computer Information Transactions Act (UCITA) shall not apply to the Agreement.
12.0 General Provisions.
12.1 Publicity. NAVEX Global may use Client’s name and trademarks (including use of logos) in NAVEX Global’s customer lists for marketing or promotional purposes. With prior written approval (which may occur via email), NAVEX Global may use Client’s name and trademarks (including use of logos) (i) in press releases and other communications pertaining to Client’s agreement to use NAVEX Global’s Products or Services, and (ii) on NAVEX Global’s website and other sales and marketing media, including collateral, emails, tradeshows, and signs.
12.2 Third-Party Beneficiaries. Unless otherwise prohibited by Applicable Law, nothing in the Agreement shall be construed to give any person or entity other than the parties hereto any legal or equitable claim, right, or remedy; rather, the Agreement is intended to be for the sole and exclusive benefit of the parties.
12.3 Assignment. The terms of the Agreement shall be binding on the parties and their respective successors. Neither party will assign, transfer, or delegate its rights or obligations under the Agreement (in whole or in part) without the other party’s prior written consent, except (i) to an Affiliate, or (ii) pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void.
12.4 Consents and Approvals. Unless the parties have agreed otherwise herein, all consents and approvals required under the Agreement must be delivered in writing by courier, facsimile, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the most recent Order Form. Such consent or approval shall be deemed delivered when received. NAVEX Global shall deliver invoices and fee increase notices via email only. Regardless of the method used to deliver a consent or approval, Client shall send a copy of such consent or approval to firstname.lastname@example.org on the same date the consent or approval is sent.
12.5 No Agency. The Agreement shall not be construed to create a joint venture or partnership between the parties. Neither party shall be deemed to be an employee, agent, partner, or legal representative of the other for any purpose, nor shall either party have any right, power, or authority to create any obligation or responsibility on behalf of the other.
12.6 Compliance with Law.
i. Each party shall be responsible for compliance with all Applicable Law, if any, related to the performance of its obligations under the Agreement.
ii. NAVEX Global’s Products and Services are subject to U.S. sanctions laws and may not be sold or licensed to any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury ("Restricted Party") or in U.S.-sanctioned countries (the most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Client represents and warrants that neither Client, nor any of its Affiliates, or, to its knowledge, any of its or any of its Affiliates’ directors, officers, employees, or agents are currently the subject of a Sanctions Investigation. Client shall promptly notify NAVEX Global if it or any of its Affiliates, or any of its or any of its Affiliates’ directors, officers, employees, or agents, become the subject of any Sanctions Investigation. Client agrees not to use, transfer, or provide access to NAVEX Global’s Products and Services (a) to any Restricted Party, or (b) in or for the benefit of individuals or entities from such U.S. sanctioned countries. Client represents and warrants that it is not directly or indirectly owned by, controlled by, owning, controlling, or named as a Restricted Party. NAVEX Global and its Affiliates may not do business with a Restricted Party under U.S. law (the most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx and http://www.bis.doc.gov/index.php/the-denied-persons-list).
iii. Client represents and warrants that its use of NAVEX Global’s Products and Services will in all respects comply with current U.S. export controls regulations and requirements, including, but not limited to, those promulgated by U.S. Departments of State, Commerce, Homeland Security, Treasury and Defense. Any breach of this Section 12.6 is a material breach of the Agreement, this LSA, and any applicable Order Form for which no cure period shall apply.
12.7 Force Majeure. Except for payment of fees, neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement if and to the extent that such failure or delay is caused by events beyond its reasonable control, including, but not limited to, acts of the public enemy or a governmental body in its sovereign or contractual capacity, war, fire, floods, unusually severe weather, outside electrical failure, the limitations or failures of third-party internet service providers and/or telecommunication providers, the performance or failures of internet service providers or acts of terrorism, including cyber-attacks on NAVEX Global’s computer systems or those of third parties, including, without limitation, internet service providers and telecommunication providers. If so affected, the affected party shall use commercially reasonable efforts to avoid or remove such causes of non-performance or delay and shall continue performance hereunder with reasonable dispatch whenever such causes are removed or otherwise resolved.
12.8 Waiver. No waiver or delay in enforcement of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
12.9 Survival. The terms and conditions of the Agreement that by their nature require performance by either party after the termination or expiration of this LSA, including, without limitation, limitations of liability, confidentiality obligations, exclusions of damages, indemnification obligations, governing law, fees owed prior to the date of termination, and any other provision or partial provision that by their nature would reasonably extend beyond the termination of this LSA shall be and remain enforceable after such termination or expiration of this LSA for any reason whatsoever.
12.10 Severability. If any provision of the Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with Applicable Law, and (ii) the remaining terms, provisions, covenants, and restrictions of this LSA shall remain in full force and effect.
12.11 Audit. Client shall maintain accurate records of its use of the Product and Services at all times during the Term of this Agreement, including with regard to Subscription Metrics. Furthermore, Client agrees to provide a License Utilization Report no less than ten (10) calendar days prior to the expiration of each year of a Term and at the end of each Term. If Client’s actual Users exceeds the applicable Subscription Metrics, Client will pay an invoice for excess usage in accordance with the Order Form and Section 5.5 (Additional Product and Service Fees).
12.12 Entire Agreement. The Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements, proposals, responses to requests for proposals, representations, and warranties, written or oral, concerning the subject matter of the Agreement, including any prior non-disclosure or confidentiality agreement(s), which shall be replaced by those terms and conditions set forth in Section 9.0 (Confidential Information) unless otherwise expressly agreed to in writing by the parties. This LSA and any Order Forms may be modified or amended only in writing signed by a duly authorized representative of each party; any other act, usage, or custom shall not be deemed to amend or modify this LSA or an Order Form. It is expressly agreed that the terms of the Agreement shall supersede the terms in any Client purchase order, and the terms included in any such purchase order or other Client policy shall not (i) apply to the Services ordered, and (ii) in any way modify, revise, supplement, or otherwise affect the terms and conditions in the Agreement. If Client requires processing of payments through a third-party payment vendor, it is understood and agreed that use of such third-party payment vendor is solely for the convenience of Client and such documentation associated with payment submission shall not in any way modify, add to, or delete any of the terms and conditions of the Agreement. Any costs associated with the use of such third-party payment vendor shall be borne exclusively by Client.
12.13 Section Headings. The Section headings are for reference purposes only and shall not in any way affect the meaning or interpretation of this LSA.
12.14 Counterparts. The parties may execute this LSA and any Order Form in counterparts. An exchange of scanned and emailed executed copies or electronic signatures is acceptable. In the event of such an exchange, this LSA and any Order Form shall become binding and any scanned and emailed signed copies or electronic signatures shall constitute admissible evidence of the existence of this LSA or Order Form.
The offer of these terms shall remain valid for sixty (60) calendar days from the date NAVEX Global originally sends Client this LSA; this offer shall be rescinded if Client does not sign and return this LSA to NAVEX Global on or before this date. This LSA has been entered into by the duly authorized representatives of each of the parties and is entered into as of the Effective Date.