AchieveForum Inc: Alliance Membership
Published: December 04, 2019
Standard Terms and Conditions
Client and Company, as deﬁned in the preceding Client Conﬁrmation Form, agree that the following terms and conditions shall apply to the services ordered by Client on the Client Conﬁrmation Form and thereafter provided by Company.
1. Programs and Services - The capitalized terms “Programs” and “Services” mean, respectively, Company’s programs, deliverables, services (including research, drafting, delivery, consulting, and customization work) for which orders are placed by Client and accepted by Company during the Term. Programs may include articles, white papers, participant materials, facilitator materials and other materials (collectively, “Materials”), whether delivered in print or other tangible media or through electronic means.
2. Intellectual Property and License Grant - Client acknowledges and agrees that Company is, and remains, the owner of all intellectual property rights in and to the Programs, Services, and Materials whether or not protected by patents. Company acknowledges and agrees that Client will retain all its rights, title and interest in and to Client's products, trademarks, technology, inventions, techniques, data, designs and other information, whether or not protected by patents. Company grants to Client a nonexclusive, nontransferable, limited license to use the Programs and Materials available as part of the Alliance Membership (“Membership”) solely for Client's internal use by employees of Client during the Term. Persons receiving the Materials pursuant to the foregoing license are referred to in this Agreement as “Participants.” Participants are permitted to retain indeﬁnitely for their personal reference the tangible Program Materials. During the Term of the Membership, Client may incorporate portions of the Materials in Client’s training materials or translate or otherwise modify Materials, for its own internal use or for sharing on the Site (as defined below), provided that Client complies with the following conditions: (i) Client agrees to retain and keep visibly displayed all copyright and trademark attribution that appear on the Materials; (ii) Client may not sell, sublicense, or permit the use of any or all of the Programs or Materials, or any derivatives thereof, by any third party (except as may be shared in accordance with Section 7 below); (iii) all copyrights in the Materials so modified will remain vested solely in Company, and to the extent rights in such modified Materials vest in Client by operation of law or otherwise, Client irrevocably and unconditionally assigns such rights to Company. To the extent such rights are not assigned to company, Client grants to Company an unlimited, fully paid up, royalty-free license to the Materials so modified. Client shall be fully responsible and liable for all actions or omissions of its officers, employees, agents, independent contractors. Any copying, distribution or use of Programs or Materials not in accordance with the provisions of this Agreement is a violation of these license grants and an infringement of Company’s copyrights.
3. Audit. Company will have the right, during the Term of this Agreement and for ninety (90) days thereafter, to audit Client's Program use for the purpose of conﬁrming Client's compliance with the foregoing License Grants.
4. Payment - Membership fees are due and payable in the currency set forth in the Client Confirmation Form, and if no currency is specified, then in US dollars, and are to be paid annually. Client agrees to pay all undisputed amounts due hereunder within thirty (30) days of the invoice date. If Client fails to provide written notice of a good faith dispute in advance of the payment due date, Company will be entitled, in addition to any other available remedies, to suspend all deliveries to Client under this Agreement. Client will be responsible for payment of all taxes (including but not limited to sales and use taxes) associated with this Agreement except for taxes based on Company’s net income. Fees are non-cancellable and non-refundable regardless of whether Client uses the services. If Client has received a discounted Membership fee in connection with a multi-year commitment, and fails to pay the fees for subsequent years when they are due, Company will invoice Client the difference between the standard Membership Fee and the discounted fee paid for previous years, and client shall pay such invoice within thirty (30) days of the invoice date. Client shall reimburse Company for all reasonable travel and lodging expenses ("Reimbursable Expenses"). Reimbursable Expenses, and materials fees may be invoiced separately from training/facilitation fees (invoiced upon delivery). Payments will be accepted via wire, ACH, check or credit card. If Client pays via credit card, Client shall pay Company a 3% processing fee in addition to the invoice amount.
5. Delivery and Access to Programs and Materials - Upon payment of the Membership fee, Client employees will be permitted to access digital download versions of Membership Materials and register for and access Membership Programs and Services.
6. Warranty/Disclaimers - Company warrants that the Programs and Services: (a) when used in accordance with the terms and conditions of this Agreement, will not infringe or otherwise violate any patents, copyrights, trademarks, trade secrets or other intellectual property rights of any third parties; and (b) will be free from material defects in materials and workmanship when delivered. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE PROGRAMS AND SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Sharing of Content. Certain Membership services may permit Client and Client’s employees to post, upload or otherwise share questions, comments and information (“Content”) to one or more sites or peer-to-peer networks (collectively, the “Site”). Any Content that Client or any Client employee uploads or otherwise posts to a Site may be used by Company in order to provide and maintain the Site, Services or Company’s business. Client and the end user are solely responsible for all Content that is shared, provided, displayed, published, or disseminated to others. By providing Content to Company, Client and Client’s employee represent and warrant that the Content is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). Company may remove or delete Content from the Site or Services at any time in its sole discretion.
8. Compliance with Laws - Each party represents and warrants that it: (a) will comply with all applicable legal and regulatory requirements in connection with this Agreement, which include: (i) information privacy and data protection laws and regulations relating to the protection, disclosure and use of individuals' personal data (such as the General Data Protection Regulation (GDPR) if applicable) and other laws and regulations that mandate the protection of personal data; (ii) anti-bribery, anti-corruption, anti-money laundering laws and regulations; and (iii) international trade sanctions, embargoes, or export bans of the US, EU, UK, UN and any other governmental or supranational body with jurisdiction over this Agreement or either party (“Sanctions”); (b) is not a subject of Sanctions; (c) is not owned or controlled by any person or entity subject to Sanctions; and (d) is not located or organized in, or owned or controlled by persons or entities in a jurisdiction subject to Sanctions (including Cuba, Iran, North Korea, Syria, and the Crimea Region of the Ukraine) (“Sanctioned Jurisdiction”).
a. Client further represents and warrants that it will not transfer, provide access, or use the Services or work product (including tools and intellectual property) to or for the benefit of any Specially Designated National and Blocked Person (as designated by the U.S. Department of the Treasury’s Office of Foreign Assets Control), to or in any Sanctioned Jurisdiction, or to any other party if such transfer, access, or use would constitute a violation of Sanctions.
b. Any breach of this section is a material breach of this Agreement and grounds for immediate termination by the non-breaching party.
c. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement requires Company, or its parent, affiliates or subsidiaries to do any act or refrain from doing any act which would result in Company, or its parent, affiliates or subsidiaries violating (or becoming subject to any penalty under) any laws to which it is subject.
a. Company shall defend and indemnify Client from any third party claim that the Services, Programs or Materials infringe any patent, copyright or trade secret provided that: (a) Client promptly notifies Company of the claim; (b) Company has sole control over the defense and settlement of the claim, and (c) Client complies with any settlement or court order made in connection with the claim.
b. Client shall defend and indemnify Company from any third party claim that (a) any modifications or changes to the Programs or Materials made by Client or Client’s employees infringe any patent, copyright or trade secret; or (b) arising out of or relating to any Content or other material transmitted by Client or Client employees through the Site or Services, including without limitation any claims related to privacy, confidentiality, trade secrets, misappropriation or infringement of any third party intellectual property rights. Company shall promptly notify Client of the claim and Client will have control over the defense of such claim(s) related solely to the Client’s actions and/or Content which do not implicate Company’s intellectual property rights in the Programs and Services. For avoidance of doubt, Client shall have no right to control the defense of, consent to entry of judgment or agree to any settlement that would impede, modify, restrict, license or otherwise effect any rights held by Company in any intellectual property (including without limitation the Programs, Services and/or Materials) without Company’s prior written consent.
10. Limitation of Liability - TO THE EXTENT ALLOWED BY LAW, COMPANY’S LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT OR ANY PROGRAMS OR SERVICES DELIVERED HEREUNDER SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY FOR PROGRAMS AND SERVICES DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM. COMPANY SHALL NOT BE OR LIABLE FOR ANY CONTENT CREATED BY, PROVIDED BY OR POSTED TO ANY SITE BY CLIENT, CLIENT’S EMPLOYEES OR ANY OTHER USER OF THE SITE, INCLUDING ANY BREACH OF ANY CONFIDENTIALITY OR TRADE SECRET OBLIGATIONS RESULTING FROM CLIENT OR CLIENT’S EMPLOYEES POSTING ANY CONTENT OR OTHER INFORMATION ON THE SITE.
11. Conﬁdential Information - Company and Client acknowledge that, subject to the exceptions set forth below, the following shall constitute “Conﬁdential Information”: (a) any information relating to this Agreement; and (b) any other information that either party reasonably holds in conﬁdence or has received from a third party under an obligation of conﬁdentiality. The following information will not be considered ''Conﬁdential Information'': (w) information that is already generally available to the public at the time of disclosure by the disclosing party; (x) information that hereafter becomes generally available to the public, through no fault of the receiving party; (y) information that is known by the receiving party prior to the disclosure; and (z) information that becomes known through a third party under no obligation not to disclose it. During the Term and for three years thereafter, each party agrees to maintain the other party’s Conﬁdential Information as strictly conﬁdential and not to, directly or indirectly, disclose or reveal it to any third party, or seek to use it for any purpose, except as contemplated in this Agreement or as required by a court or governmental authority of competent jurisdiction, after ﬁrst notifying the disclosing party of such disclosure requirement.
12. Term and Termination - This Agreement shall commence on the Start Date and end on the End Date (each as recorded on the Client Conﬁrmation Form) (“Term”). This Agreement may be terminated: (a) by written notice from either party in the event the other party materially defaults in the performance of its obligations hereunder, which default has not been substantially cured within thirty (30) days after written notice has been given to the defaulting party specifying the default or (b) by Company immediately, in the event Client has breached the License(s) granted in this Agreement. Company may deny or restrict access to all or part of the Programs or Materials without notice if Client has not paid the applicable Membership fee, or (2) Company deems in its reasonable discretion that Client or Client’s employees have violated the terms of this Agreement. If Company denies or restricts access because of such a violation, Client shall have no right to obtain any refund of Membership fees. Following termination or expiration of the Membership, for any reason, Client and Client’s employees shall immediately cease use of the Site and Services and any license hereunder shall terminate. Upon termination, Company may, in its sole discretion, continue to store Content for a reasonable period of time, but does not guarantee that Content will still be available upon re-activation at a later time. Notwithstanding the foregoing, Company reserves the right to delete all Content and other information stored on Company’s servers, and will not be liable for any damages, compensation, or reimbursement relating to use, loss, or deletion of any data or Content from the Site.
13. - Company reserves the right to substitute or migrate the Programs and features provided as part of the Membership at any time, provided that Company continues to provide Programs and features with similar or better functionality for the remainder of the Term
14. Miscellaneous - The parties are independent contractors. Rights and obligations under this Agreement which by their nature should survive will remain in effect after termination or expiration of this Agreement. Each party will be excused from performance hereunder except for the payment of money due for any period and to the extent that it is prevented from performing its obligations, in whole or in part, as a result of delays caused by an act of God, war, civil disturbance, terrorism or nonperformance by third party providers of goods or services, and such nonperformance shall not be a default hereunder or, except as provided in this Section, a ground for termination. This Agreement and all matters relating to this Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, excluding its conflicts of law rules. No delay or omission by either party to exercise any right or power under this Agreement will impair such right or power or be construed to be a waiver thereof. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one instrument. Company may, without consent of Client, assign, transfer, delegate or pledge this Agreement and/or its rights and obligations hereunder to any third party in connection with any merger, spin-off, or sale of substantially all of the Company’s stock or assets. This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes the terms and conditions of any agreement prior to the date hereof or any preprinted terms of a purchase order submitted at any time. This Agreement may not be modified except by a writing signed by both parties.