1 Terms & conditions. litmosheroes.com
THE DULL BUT VERY IMPORTANT PART…
Saving the world from boring terms and conditions (maybe)…
Over here at Litmos Heroes (Callidus Software Inc “Callidus”), we are busy working with great people like you to save the world from boring e-learning. We don’t have lots of time to worry about the small print (that says small print by the way), but we recognise this sort of thing is important. It protects us and it protects you, so we really shouldn’t complain. In short, we’ll do our best to keep it simple and to the point.
This is an agreement between you and us and it will be the best agreement you’ve ever signed because it gives you loads of great content and means you’ll be a hero in your organisation.
Standard Introduction (if only this bit could be read at the speed of Superman)These Conditions set out the standard terms and conditions (for Callidus) of business for Purchasers and Learners and hall govern the provision of Products (of whatever nature) and Services by Callidus to its Purchasers.
The headings in these Conditions are for convenience only and shall not affect their interpretation. Please note, the language of these Conditions is English. English is the definitive and binding version and the only language used in the interpretation of these Conditions.
These Conditions and the Agreement shall form the agreement between You and Callidus to the exclusion of all other terms and conditions (including any terms and conditions which You purport to apply as specified in any purchase order, written instructions, letter of engagement, order confirmation, brief or other specification) and supersede any earlier agreement or agreements between You and Callidus.
This Agreement sets forth the terms and conditions that govern certain OnDemand Services provided by Callidus. This Agreement may be supplemented by separate Schedules that specify the OnDemand Services and quantities selected, the Callidus charges, and other details of your order. This Agreement and each Schedule are subject to signature by both Callidus and Customer. The Schedule and this Agreement will constitute the complete agreement for the On-Demand Services and will supersede any prior discussions or representations regarding the On-Demand Services. If there is a conflict between the terms and conditions of this Agreement and a Schedule, the terms and conditions of the Schedule will prevail, but only with respect to the OnDemand Services subject to the Schedule. Hereafter, the term “Services” shall mean the On-Demand Services. The parties agree as follows.
Article 1. Customer’s Use of the OnDemand Services 1.1 Free Trials.
Should Customer agree to this Agreement as part of a free trial, then this section 1.1 shall apply.
When Customer first agrees to these terms, Callidus allows for a fourteen (14) day free trial (“Free Trial Period”) of the Services for no more than twentyfive (25) Authorized Persons to use the Services on behalf of Customer with no payment obligation and no obligation of continued subscription past the Free Trial Period. Callidus shall have the right to immediately suspend Services upon expiration of Customer’s Free Trial Period. To avoid any such interruption of Services, Customer may elect to continue using the Services after its Free Trial Period by accepting Callidus’ written Schedule, which will set forth the Services, the subscription Term, the number of users (and how defined), pricing, fees (“OnDemand Fees”), and reference to this Agreement (collectively, the “Schedule”). Customer acknowledges and agrees that this Agreement will govern Customer’s use of Services during a Free Trial Period and any paid subscription Term for which Customer accepts a Schedule.
ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE SERVICES DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT CUSTOMER DATA WILL BE PERMANENTLY LOST.
1.2 Provision of the Services.
Callidus will make available to Customer on a subscription basis for the Term the On-Demand Services pursuant to this Agreement and the applicable Schedule. Services are designed to be available 24/7 subject to maintenance. Customer will be notified of scheduled maintenance. Service Level Warranties, if applicable, are set forth in the Schedule. Callidus will, as part of providing a Service, apply any update, bug fix or upgrade to the Service that it makes generally available to its customers of the Service. Services are subject to usage limits, including for example, the quantities specified in the Schedule. Callidus will comply with all Laws applicable to it in connection with its provision of the Services to Customer. Callidus reserves the right to modify the content of the online course library at any time.
1.3 Customer Obligations.
Customer may enable access of the Services for use only by Authorized Persons solely for the internal business purposes of Customer and its Affiliates in accordance with this Agreement and not for the benefit of any third parties. Customer is responsible for all Authorized Persons’ use of the Services and compliance with this Agreement and the applicable Schedule(s). Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data that is transmitted or otherwise provided to Callidus and the means by which Customer acquired Customer Data; (b) ensure that its employees receive any required disclosures and appropriate training concerning the use of the Services; (c) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Callidus promptly of any such unauthorized access or use; and (d) shall use the Services(s) only in accordance with this Agreement, the Documentation and the applicable Law. Customer shall not: (i) use the Services in violation of applicable Laws and regulations; (ii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights. Customer shall be liable for the acts and omissions of all Authorized Persons and Customer Affiliates relating to this Agreement. If Customer installs or enables a third-party application for use with a Callidus OnDemand Service, Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants Callidus permission to allow the provider of that third-party application to access Customer Data as required for the interoperation of the third-party application and the Callidus On-Demand Service.
Article 2. Customer Data
2.1 Protection and Security.
During the Term of this Agreement, Callidus shall establish, implement and maintain commercially reasonable administrative, physical and technical measures that are designed to protect the security and integrity of Customer Data that is provided to Callidus by Customer, and that are reasonably appropriate to the risks represented by the processing and nature of the provided Customer Data to be protected, and designed to guard against the accidental or unauthorized access, use, loss or disclosure of Customer Data while it is on Callidus’ network and systems. Customer understands that it has an independent duty to comply with any and all Laws applicable to it in connection with its provision of Customer Data to Callidus. Customer and Callidus agree that Callidus’ adherence to the SSAE16 SOC industry standard and completed SOC 2 audit reports represents commercially reasonable administrative, physical and technical measures for security and integrity of Customer Data.
2.2 Unauthorized Disclosure.
A. If either party believes that there has been unauthorized access, use, loss or disclosure of Customer Data while it is on Callidus’ network and systems, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in investigating, remediating or mitigating any potential damage, including providing reasonable assistance with respect to any legally required notifications concerning the disclosure or the provision of credit reporting services to such individuals. Except as set forth in Section2.2.B., each party shall bear the costs of such investigation, remediation, mitigation and/or notification associated with an unauthorized disclosure. B. In the event that the unauthorized access, use, loss or disclosure of Customer Data was caused by breach of Callidus’ obligations under this Agreement, then Callidus shall reimburse Customer for its reasonable actual out-of-pocket costs to investigate and/or remediate such disclosure and provide legally required notifications to the affected users, subject to the cap on liability in Article 9. This
Section 2.2.B states
Callidus’ sole liability for unauthorized access, use, loss or disclosure of Customer Data attributable to Callidus’ breach of its obligations under this Agreement. 2.3 Audit. Callidus annually retains a nationally recognized, independent third party assessment organization (the “Callidus Auditor”) to perform an independent audit according to the industry standard SSAE 16 SOC (“Callidus Annual Audit”). At Customer’s reasonable, written request, and at no additional cost to Customer, Callidus will provide to Customer the resulting independent reports provided by the Callidus Auditor to Callidus as part of the Callidus Annual Audit.
Article 3.Fees and Payment
The On-Demand Fees shall be set out in each Schedule. Callidus will also invoice Customer at the time Customer adds any enhanced or additional Services or if Customer has increased usage by exceeding the users, Payees (or other metric or stated usage assumption described in the Schedule), as applicable, beyond those set out in a Schedule.
3.2 Payment Terms.
The On-Demand Fees will be due and payable pursuant to the provisions of an applicable Schedule in the amounts set forth in each such Schedule. Thereafter, Callidus will invoice Customer annually in advance for the On-Demand Fees under a Schedule. Callidus is entitled to charge interest on any sum that is not paid when due at a monthly rate of 1.5% or lesser maximum allowable. However, Customer’s payment will not be considered overdue for any unpaid amounts disputed in good faith on an invoice-by-invoice basis.
Excluding taxes based on Callidus’ income, Customer is liable for all taxes relating to the Services, except to the extent Customer has provided Callidus with a valid tax exemption or direct pay certificate.
Article 4. Confidentiality
4.1 Confidential Information Defined.
A. “Confidential Information” means all information disclosed by a party (“Discloser”) to the other party (“Recipient”), orally or in writing, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstance of disclosure. Customer’s Confidential Information includes Customer Data; Callidus Confidential Information includes the Services and Documentation; and Confidential Information of each party includes the terms of this Agreement and each Schedule (including signed order forms or statements of work entered under this Agreement), each party’s proprietary technology and technical information, business processes and technical product information, product plans and designs, issues, and all communication between the Parties regarding the Services.
B. Exclusions. 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 other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; (iv) is received from a third party without breach of any obligation owed to the other party; or (v) is Aggregated Data as described further in Section 5.5.
4.2 Confidentiality Obligations.
During the course of the parties’ relationship, each party may have access to Confidential Information of the other party. Neither party shall disclose any Confidential Information of the other party, orally or in writing, to any third party without the prior written consent of the other party, except as provided in this Agreement. The parties shall protect each other’s Confidential Information using commercially reasonable administrative, physical and technical safeguards. Callidus’ adherence to the SSAE16 SOC industry standard and completed SOC 2 audit reports represents commercially reasonable administrative, physical and technical measures for protection of Customer’s Confidential Information. Neither party shall use the other party’s Confidential Information for any purpose other than lawful performance of this Agreement.
4.3 Disclosure to Third Parties and as Required by Law.
Recipient may provide access to and use of Discloser’s Confidential Information only to those third parties that: (a) provide services to Recipient concerning Recipient’s use of Discloser’s Confidential Information; (b) have a need to use and access the Confidential Information; and (c) have agreed to substantially similar nondisclosure obligations as those contained in this Agreement. Recipient shall be responsible for the use by its third parties of the Discloser’s Confidential Information. To the extent Recipient may be required by Law to disclose Confidential Information, Recipient may make such disclosure, provided that Recipient (i) to the extent permitted by Law, notifies Discloser of such requirement prior to disclosure and (ii) makes diligent efforts to avoid and limit disclosure. Notwithstanding Recipient’s conformance with the procedures set forth in the prior sentence, the disclosure required by Law shall not itself cause the information to lose its confidential character unless the information ceases to be Confidential Information as a result of one of the reasons specifically set forth in Section 4.1.B above.
4.4 Injunctive Relief and other Remedies.
Each party understands that Confidential Information constitutes valuable business assets of Discloser and its disclosure may irreparably harm Discloser. In the event of breach or threatened breach of obligations pertaining to Confidential Information by Recipient, Discloser shall be entitled to seek injunctive relief. In the event of an unauthorized disclosure of Confidential Information that only includes Customer Data, Customer shall have the sole right to pursue the remedies set forth in Sections 2.2 and 9 of this Agreement. Any other potential remedies related to a breach of this section for Confidential Information that does not include Customer Data are subject to all other provisions in this Agreement.
Article 5.Proprietary Rights
5.1 Ownership and Reservation of Rights to Callidus Technology.
Callidus and its licensors own all right, title and interest in and to the Services, Documentation, Callidus Content, and other Callidus Technology, as well as any modifications that are derivative works thereof. Subject to the limited rights expressly granted hereunder, Callidus reserves all rights, title and interest in and to the Services, Documentation, and Callidus Content, including all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 License Grant.
Callidus hereby grants Customer a non-exclusive, non-transferable, right to use the Services and Documentation, and Callidus Content, solely for the internal business purposes of Customer and Affiliates and solely during the Term, subject to the terms and conditions of this Agreement within scope of use defined in the relevant Schedule(s). Callidus further grants to Customer:
A. Solely during the Term, the right to download and use the Learning Resources or portions thereof in combination with Customer’s (non-Callidus) learning material, with the express obligation that Customer remove and return or destroy all Learning Resources upon expiration or termination of the Term; Callidus may audit Customer’ compliance with this post-Term obligation once annually for the two years following expiration or termination of this Agreement.
B. solely during the Term, the right to use the Callidus Content on a third party Learning Management System provided that Callidus does not warrant and bears no responsibility for availability of the Callidus Content on a third party LMS.
5.3 License Restrictions.
Customer shall not (i) except as allowed under Section 5.2.A, modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party, other than to Authorized Persons as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Callidus in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.
5.4 Ownership of Customer Data.
As between Callidus and Customer, Customer owns its Customer Data.
5.5 Aggregated Data Use.
Without limiting the confidentiality rights and protections set forth in this Agreement, Callidus owns and has the perpetual right to use for its business and or operating purposes the aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Callidus from utilizing the Aggregated Data for purposes of operating Callidus’s business, provided that Callidus’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services. In no event does the Aggregated Data include any Customer Confidential Information, Customer Data or any information that personally identifies a specific individual.
Article 6.Term, Termination, Suspension, and Dispute Resolution
This Agreement shall have a term commencing as of the Effective Date and ending upon expiration or termination of all Schedules issued hereunder. Each Schedule shall have a term commencing on its effective date and, unless otherwise set forth in the Schedule or upon the termination of the Schedule or this Agreement, shall expire one (1) year after its effective date. Customer’s subscription Term will automatically renew for subsequent 12-month period(s) (each a “Renewal Term”) on the anniversary of the Order’s effective date, unless either party sends the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Term (whether initial or renewal, each is a “Term”.) The annual On-Demand Fee in the Renewal Term may increase by no more than 5% over that of the previous Term.
6.2 Termination for Default.
Either party may terminate this Agreement in its entirety or any specific Schedule if the other party breaches any material term of these General Terms or the applicable Schedule and does not cure such material breach within forty-five (45) days of receiving a Termination Notice.
6.3 Effect of Expiration or Termination.
When this Agreement or any Schedule expires or is terminated, Customer shall pay all money due to Callidus for Services rendered up to the expiration or termination date and any payments that may become due pursuant to this Agreement subsequent to such expiration or termination. Customer also agrees to immediately stop using the Services and accessing the software, course library, and Callidus Content upon expiration or termination of the Schedule(s) and/ or Agreement and both parties agree to stop using the Confidential Information of the other party and to return or destroy (at the party’s discretion) all the copies of the other party’s Confidential Information. To the extent the Recipient is required to keep a copy of any of the Discloser’s Confidential Information as required by applicable law, the Recipient shall continue to treat such Discloser’s Confidential Information as Confidential Information in accordance with the terms of this Agreement.
6.4 Dispute Resolution.
Prior to instituting formal proceedings, the parties shall attempt to resolve all disputes arising out of or relating to this Agreement informally. To invoke this process a party shall appoint a designated executive and request that the other party do the same. The other party shall make such appointment within five (5) days of receipt of the request. The designated executives shall then have up to thirty (30) days to attempt in good faith to resolve the matter. The informal dispute resolution process shall terminate at the end of the thirty (30) day period unless extended by mutual agreement. Disputes not resolved by informal dispute resolution as provided in this section will be resolved by litigation unless the parties mutually agree to an alternative dispute resolution method such as arbitration.
Nothing in this section shall prevent, or be construed as preventing, a party from (a) instituting formal proceedings to avoid the expiration of any applicable limitations period, or (b) seeking injunctive or other equitable relief in a court of appropriate jurisdiction.
The parties agree that all negotiations pursuant to this section will be confidential and therefore treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
No Warranties Except as Expressly Provided in a Schedule
7.1 OTHER THAN THE EXPRESS APPLICABLE SERVICE LEVEL WARRANTIES SET FORTH IN THE SCHEDULE, IF ANY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CALLIDUS MAKES NO WARRANTIES OF ANY KIND UNDER THIS AGREEMENT OR APPLICABLE SCHEDULE(S), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Article 8. Indemnification
8.1 Indemnification by Callidus.
Callidus will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Service in accordance with this Agreement and the applicable Schedule infringes or misappropriates such third party’s United States or Canadian patent, copyright or trademark, or its trade secret(s) (a “Third Party Intellectual Property Claim Against Customer”), and will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Third Party Intellectual Property Claim Against Customer, provided Customer (a) promptly gives Callidus written notice of the Third Party Intellectual Property Claim Against Customer, (b) gives Callidus sole control of the defense and settlement of the Third Party Intellectual Property Claim Against Customer (except that Callidus may not settle any Third Party Intellectual Property Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Callidus all reasonable assistance, at Callidus’ expense. If Callidus receives information about an infringement or misappropriation claim related to a Service, Callidus will either, in its discretion and at no cost to Customer, (i) modify the Service so that it no longer infringes or misappropriates, without materially degrading the functionality as described in the Documentation, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Third Party Intellectual Property Claim Against Customer arises from or is related to the provision of Customer Data by Customer to Callidus, including the unauthorized disclosure of Customer Data, (which are addressed in Section 2.2), Customer’s breach of this Agreement, modifications to the Services performed by parties other than Callidus, or combination of the Services with other materials not provided by Callidus.
8.2 Indemnification by Customer
Customer will defend Callidus against any claim, demand, suit or proceeding made or brought against Callidus by a third party alleging that Customer Data, Customer Content, or Customer’s use of any Service in breach of this Agreement and the applicable Schedule, infringes or misappropriates such third party’s intellectual property rights (a “ Third Party Intellectual Property Claim Against Callidus”), and will indemnify Callidus from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against Callidus as a result of, or for any amounts paid by Callidus under a court-approved settlement of, a Third Party Intellectual Property Claim Against Callidus, provided Callidus (a) promptly gives Customer written notice of the Third Party Intellectual Property Claim Against Callidus, (b) gives Customer sole control of the defense and settlement of the Third Party Intellectual Property Claim Against Callidus (except that Customer may not settle any Third Party Intellectual Property Claim Against Callidus unless it unconditionally releases Callidus of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
8.3 Entire Indemnification.
This Article 8 sets forth each party’s liability and the other party’s sole and exclusive remedy for indemnification related to a Third Party Intellectual Property Claim Against Customer or a Third Party Intellectual Property Claim Against Callidus.
Article 9. Limitation of Liability
9.1 Direct Damages.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, A PARTY’S AGGREGATE MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE MONTHS PRIOR TO THE DATE SUCH CAUSE OF ACTION FIRST AROSE (“FEE EXPOSURE”), EXCEPT THAT THE DOLLAR LIMIT IN THIS SECTION 9.1 WILL NOT APPLY TO DAMAGES ARISING FROM: (I) A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN ARTICLE 8; OR (II) EXPRESS OBLIGATIONS UNDER SECTION 2.2 RELATED TO THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA, WHICH SHALL BE CAPPED AT TWO TIMES THE FEE EXPOSURE. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER ARTICLE 3.
9.2 Exclusion of Consequential and Related Damages.
EXCEPT TO THE EXTENT THAT THE DAMAGES OR COSTS SET FORTH IMMEDIATELY ABOVE IN SECTIONS 9.1(I) AND 9.1(II) ARE DEEMED CONSEQUENTIAL OR INCIDENTAL DAMAGES, NEITHER PARTY (INCLUDING IN THE CASE OF CALLIDUS, ANY OF ITS SUPPLIERS OR THIRD PARTY LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, LOST PROFITS OR REVENUES, COVER OR PUNITIVE DAMAGES, HOWEVER ARISING AND EVEN IF THE PARTY AGAINST WHOM THE CLAIM IS MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Essential Elements of Agreement.
THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES APPLY REGARDLESS OF THE FORM IN WHICH AN ACTION (LEGAL, EQUITABLE OR OTHERWISE) IS BROUGHT, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE LIMITATIONS OF LIABILITIES, DISCLAIMERS OF WARRANTIES, EXCLUSIVITY OF REMEDIES, AND OTHER LIMITATIONS SET FORTH HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES (WITHOUT WHICH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WOULD NOT OCCUR) AND WILL APPLY EVEN IF A REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
Article 10. Miscellaneous
All notices required or permitted by this Agreement shall be in writing and shall be effective upon delivery (i) to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party; and (ii) also to the attention of each party’s General Counsel.
Subject to Callidus’ right to utilize Suppliers to supply all or part of the Services, neither party shall assign or transfer any of its rights or delegate any of its duties under this Agreement, whether by operation of law, as a result of a change of control or otherwise, without the other party’s prior written consent, which consent the other party shall not unreasonably withhold, delay or condition, and any purported assignment or transfer shall be null and void. Notwithstanding the above, either party may assign the Agreement as part of a general assignment to a successor-in-interest who is not a direct competitor of the nonassigning party without the other party’s prior written consent.
The terms of this Agreement, which by their nature one would reasonably intend to survive this Agreement shall survive it, including terms addressing fees (Article 3), confidentiality (Article 4), ownership (Article 5), termination (Article 6), representations and warranties (Article 7), indemnity (Article 8), limitation of liability (Article 9), and the applicable miscellaneous sections in Article 10.
10.4 Law and Jurisdiction.
California law shall govern this Agreement, excluding its conflict of laws provisions. The provisions of any federal or state Uniform Computer Information Transactions Act shall not apply. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The federal and state courts in the Northern District of California shall have exclusive jurisdiction with respect to any action arising out of, relating to or in any way connected with this Agreement, its negotiation or termination, or the Services. 10.5 Article and Section Headings. The Article and Section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.
10.6 Force Majeure.
Except for Customer’s obligation to pay Callidus or to assume obligations for taxes, neither party shall be liable for any failure to perform due to causes beyond its reasonable control, such as war, terrorism, civil commotion, Internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
10.7 Not for Use in High Risk Activities.
Customer acknowledges that the Services are not designed or intended for use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.
The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future.
Callidus may add Customer’s name and logo to Callidus’ published list of customers so as long as Customer continues to be a subscriber of the Services.
10.11 Modifications, Additional Terms, Entire Agreement, Amendment.
No purchase order or other document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. All proposed variations or additions, whether submitted by Callidus or Customer, are objected to and deemed immaterial unless otherwise agreed to in a writing signed by both parties. This Agreement constitutes the entire agreement and understanding between the parties concerning Customer’s access to the Services and may not be modified by custom or usage. This Agreement replaces and supersedes all prior oral or written understandings, communications and representations between the parties with respect to the Services. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.
Article 11. Definitions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of fifty-one percent (51%) of the voting interests of the subject entity.
“Authorized Persons” means an individual or entity that is authorized by Customer to use the Services, or to whom Customer (or Callidus at Customer’s request) have supplied a user identification and password. Authorized Persons may include, for example, Customer’s employees, partners, customers, consultants, and contractors. Authorized Persons exclude competitors of Callidus.
“Callidus Technology” means Callidus proprietary technology, including the Services, software, hardware designs, copyrights, trademarks, patents, trade secrets, software tools, algorithms, user interface designs, architectures, products, documentations, the designs and schema for any network or system connectivity and related intellectual property worldwide and whether in printed, written, electronically reproduced or any other form and whether owned by Callidus or any Supplier or licensed to Callidus or any Supplier and all enhancements, derivatives, improvements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement.
“Callidus” means Callidus Software Inc., its subsidiaries and Affiliates.
“Confidential Information” has the definition provided in Section 4.1.
“Content” means courseware content that is created or viewed within a Learning Management System (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship).
“Callidus Content” means Content and Learning Resources created by or for Callidus, or otherwise provided by Callidus to Customer. Unless excepted, “Callidus Content” is included in each reference to Services in this Agreement.
“Customer Content” means courses proprietary to Customer or a third party that Customer creates, launches or administers in the Litmos LMS.
“Customer Data” means the electronic data or information submitted by Customer or Authorized Persons to the On-Demand Services.
“Discloser” has the definition provided in Section 4.1.A
“Documentation” means the published user manuals, whether in print or electronic form, or on-line help functions for each Service, as updated from time to time.
“Law” means any local, state, national and/ or foreign law, treaties, and/or regulations applicable to a respective party.
“Learning Management System” or “LMS” means a cloud-based learning management system through which a learner can register and participate in Content, and a learning manager can administer and view reports on the learner’s activities; the LMS may enable Customer to create and view Customer Content.
“Learning Resources” means (other-than subscribed course) items that Customer may download from the course library, or that Callidus may otherwise provide, such as ancillary learning material like workbooks, graphics, or coursecompletion promotional collateral that Customer may use pursuant to this Agreement to supplement subscribed courses in its internal curriculum to its learners. Unless excepted, “Learning Resources” is included in each reference to Callidus Content in this Agreement.
“On-Demand Fee” means the fee Callidus charges to Customer for the Services that is detailed in each Schedule.
“Recipient” has the definition provided in Section 4.1.A.
“Schedule” means any of the so-titled documents, along with all of its exhibits and attachments, which is issued pursuant to or refer to this Agreement and is executed by Customer and Callidus.
“Services” or “On-Demand Services” means the On-Demand Services provided by Callidus to Customer under a Schedule
“Supplier” means any person or entity contracted by Callidus that provides services, materials, products, or supplies in connection with the Services. Callidus may change Suppliers at its sole discretion. Callidus is responsible for its Suppliers’ compliance with this Agreement.
“Term” means the duration of Customer’s subscription to the Service as set forth in the Schedule.
Termination Notice” means prior written notice (consistent with Section 10.1) by one party to the other of the intent to terminate the Services under any or all Schedules.
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