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1. Definitions

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service.

User means any individual or entity who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Provider at Customer’s request) for the Service.

“Services Fees” means the fees (as specified in the Order Form) payable by Customer to Provider for the right to receive access to the Service.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Service” means access to Provider’s software-as-a-service platform that enables Salesforce customers to provide training content that is recommended to users, as further described by the User Guide.

“Term” has the meaning ascribed to that term in Section 10.1.

 

2. Grant of License.

2.1          Provision of Service.  Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and payment of the applicable fees, Provider shall make the Service available to Customer during the Term for Customer’s internal business use.

2.2          User Accounts.  User accounts are for use by designated Users 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 Service.

2.3          Customer Affiliates.  Customer Affiliates may use the Service subject to the terms of this Agreement.  Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.

 

3.  Use of the Service.

3.1          Provider Responsibilities.  Provider shall: (i) in addition to its confidentiality obligations hereunder, not  use  or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer and the applicable Users(s); (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer’s Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Provider shall give at least eight (8) hours notice via the Service and which Provider shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Pacific Time Friday to 3:00 a.m. Pacific Time Monday); or (b) any unavailability caused by circumstances beyond Provider’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Provider employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Provider’s possession or reasonable control, and denial of service attacks.

3.2          Customer Responsibilities.  Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement and the User Guide.  Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Provider promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws, the terms and conditions of the Salesforce service, and the Lurniture Privacy Policy.

3.3          Use Guidelines.  Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.

 3.4          Publicity.  Neither party may issue press releases relating to this Agreement without the other party’s prior written consent.  Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.

 

4.  Fees & Payment.

4.1            Fees.  In consideration for the receipt of the Service, Customer shall pay Provider the Services Fees, all as specified in the Order Form.  All amounts are payable in United States dollars.

4.2           Invoicing & Payment. Fees for the Service will be invoiced on a monthly basis unless otherwise stated in the Order Form. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date.  Customer is responsible for maintaining complete and accurate billing and contact information with Provider.

4.3          Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Provider’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4           Taxes.  Unless otherwise stated, Provider’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes  (collectively, “Taxes“).  Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Provider’s net income or property.  If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.5          Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Provider reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

 

5.  Proprietary Rights.

5.1              Reservation of Rights. Subject to the limited rights expressly granted hereunder, Provider reserves all rights, title and interest in and to the Service and any content provided as part of the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.2             Restrictions. Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or User Guide; (d) frame or mirror any content forming part of the Service; (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; or (f) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.

5.3              Customer Data. As between Provider and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. Provider shall not access Customer’s User accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request or as necessary for the operation of the Service or billing.  Customer hereby grants Provider a non-exclusive license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Service. Provider will have the right to create analytics, compile and freely use any data derived from Customer Data and/or data derived through use of the Services (“Derived Data”).  For the avoidance of doubt,   Derived Data does not include any raw Customer Data or confidential information of Customer, will not be used to identify Customer, and will be anonymized data which does not contain personal information.  All right, title and interest in and to Derived Data will be owned by Provider.”

5.4               Suggestions. Provider shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.

 

6.  Confidentiality

6.1             Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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, including the terms and conditions of this Agreement, the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes.  Confidential Information 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2            Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

6.3            Protection.  Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

6.4          Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with 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.

6.5           Remedies.   If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

 

7.  Warranties & Disclaimers.

7.1           Warranties.  Each party represents and warrants that it has the legal power to enter into this Agreement.  Provider represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the User Guide; and (iii)the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User. Notwithstanding the foregoing, during any free trial, the Services are provided “AS IS” without any warranties.

7.2          Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

8.  Mutual Indemnification.

8.1           Indemnification by Provider. Subject to this Agreement, Provider shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Customer by a court of competent jurisdiction in any actions, lawsuits, or proceedings made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party (“IP Claims”); subject to the condition that Customer (a) promptly gives written notice of each IP Claim to Provider; (b) gives Provider sole control of the defense and settlement of each IP Claim (provided that Provider may not settle or defend any IP Claim unless it unconditionally releases Customer of all liability); and (c) provides to Provider, at Provider’s cost, all reasonable assistance in respect to each IP Claim.

8.2           Mitigation.  If (a) Provider becomes aware of an actual or potential IP Claim, or (b) Customer provides Provider with notice of an actual or potential IP Claim, Provider may (or in the case of an injunction against Customer, shall), at Provider’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Provider.

8.3           Exclusions.  The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Provider with other products, software or services not provided by Provider; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.

8.4           Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Provider harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any actions, lawsuits, or proceedings made or brought against Provider by a third party alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party (“Customer Claims”); provided, that Provider (a) promptly gives written notice of each Customer Claim to Customer; (b) gives Customer sole control of the defense and settlement of each Customer Claim (provided that Customer may not settle or defend any Customer Claim unless it unconditionally releases Provider of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance in respect to each Customer Claim.

 

9.  Limitation of Liability.

9.1              Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

9.2             Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS)  HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3             Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.

 

10.  Term & Termination.

10.1           Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of one (1) year (such initial term referred to in this Agreement as the “Initial Term”).  Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof.  Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.

10.2           Termination for Cause. A party may terminate this Agreement for cause:  (i) upon thirty (30) days written notice of a material breach to the other party 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.  Upon any termination for cause by Customer, Provider shall refund Customer any prepaid fees for any periods after the termination of the Agreement.

10.3            Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Provider prior to the effective date of termination.

10.4            Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.

 

11.  General Provisions.

11.1              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.

11.2              Notices.   All notices under this Agreement 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 second business day after sending by email.  Notices to Provider shall be addressed to the attention of the Legal Department.  Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.

11.3              Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.4             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.

11.5            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, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.6            Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles.  No choice of laws rules of any jurisdiction shall apply to this Agreement.  The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.  The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.

11.7           Venue; Waiver of Jury Trial. The provincial and federal courts located in Ottawa, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts.  Each party also 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.

11.8           Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

11.9          Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries.  Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation.  Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.

11.10        Entire Agreement. This Agreement, including all schedules, exhibits and addenda hereto and any other documents referenced herein, 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 signed by the party against whom the modification, amendment or waiver is to be asserted.  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto, the terms of such schedule, exhibit or addendum shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

11.11          Counterparts.  This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.