Updated 10/27/2011
Master Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE APPLICATION OR PURCHASING ANY SERVICES.
BY ACCESSING AND USING THE APPLICATION OR PURCHASING ANY SERVICES, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE APPLICATION OR PURCHASE ANY SERVICES.
The following terms govern your access and use of the Application or receipt of any services, except if you have entered into a separate written agreement with VisibleGains, Inc. or if the Application is subject to a separate "click-on" license agreement as part of your access and use. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the written agreement, and (2) this Master Agreement. The Effective Date of this Agreement is the first date that you access or use the Application or purchase any services.
The parties agree as follows:
1. DEFINITIONS
"Application" means VisibleGains software as a service application which allows a Customer to create content, deploy and share that content and view reporting information associated with their use.
"Customer Information" means Customer content, video, data and other information created by Customer using the Application or created in other applications and imported into the Application.
"Intellectual Property Rights" means any and all patent rights, copyright rights, mask work rights, trade secret rights, sui generis database rights and all other intellectual and industrial property rights of any sort throughout the world (including any application therefor).
"Services" means any training or support services described on the VisibleGains website and provided by VisibleGains to Customer.
2. LICENSE.
2.1 Licenses and Permissions. (a) Customer hereby grants to VisibleGains a non-exclusive license to access, use, reproduce, distribute, transmit and display Customer Information in connection with the Application. Nothing in this Agreement is intended to grant to VisibleGains any rights in or to the Customer Information (other than those expressly granted herein). (b) Subject to the terms and conditions of this Agreement, VisibleGains grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to access and use the Application in order to create Customer Information and to host and deliver such Customer Information during the applicable Term.
2.2 Restrictions. Customer agrees not to (i) sell, rent, sublicense or lease access to the Application to provide services to third parties, including but not limited to ASP’s, time-shares or other similar entities; (ii) remove, obscure or alter any proprietary notices associated with the Application; (iii) willfully tamper with the Application; (iv) use the Application, or allow the Application to be used, in any manner or for any purpose other than as expressly permitted herein; (v) reproduce, modify, make derivative works of, use, make, have made, sell, offer to sell or import the Application, except as expressly provided in this Agreement; or (vi) disassemble, decompile, or reverse engineer the Application.
2.3 Hosting of Customer Information and Acceptable Use. During the Term, VisibleGains, or its third party hosting providers, will host Customer Information. Customer agrees to comply with any acceptable use policy relating to the hosting of such Customer Information. If Customer violates any acceptable use policy or the Customer Information negatively affects VisibleGains, then VisibleGains may immediately remove the Customer Information and cease hosting of such Customer Information, until such time as the Customer provides adequate assurances that it will comply with the acceptable use policy or that the Customer Information will cease to negatively affect VisibleGains.
2.4 Provision of Services. VisibleGains will provide the Services purchased by Customer at the support levels consistent with the Services purchased.
3. PAYMENTS
3.1 Fees; Costs and Expenses. Customer will pay VisibleGains the fees for the Application and the Services, as such fees are set forth on the VisibleGains website or otherwise communicated in writing to Customer. Except as specifically provided in this Agreement, each party is responsible for all costs and expenses incurred in connection with its performance hereunder.
3.2 Payment Terms. All amounts due will be payable in United States dollars, and all payments due hereunder will be paid by credit card or in accordance with any other terms and conditions agreed upon by the parties in writing.
3.3 Taxes. Each party shall be responsible for and pay any and all applicable federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation,
sales taxes, use taxes and value added taxes) resulting from its performance under this Agreement.
4. PRIVACY AND CONFIDENTIALITY
4.1 Each party agrees that all business, technical and financial information it obtains from the other party that is designated as confidential in writing at the time of disclosure, or is disclosed in such a manner that a reasonable person would understand such information to be confidential, is and shall be the confidential property of the disclosing party ("Confidential Information"). Such Confidential Information includes, but is not limited to, products, technological processes, product forecasts, trade secrets, pre-publication patent applications, product designs, pricing information and rate cards, software designs, hardware or system designs, technology specifications, source code, object code, graphic designs, report templates, proprietary financial information, systems architecture, and systems functionalities. Confidential Information also includes all copies, summaries and extracts of any Confidential Information. For the sake of clarity, the Application is Confidential Information. Confidential Information shall not include information that: (a) is previously rightfully known to the receiving party without restriction, (b) is or hereafter becomes known to the general public, through no act or omission on the part of the receiving party, (c) is rightfully disclosed to the receiving party without restriction by a third party or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
4.2 Except as expressly allowed herein, the receiving party will not use or disclose Confidential Information except as expressly permitted herein and will hold in confidence the Confidential Information using the same degree of care as it holds its own confidential information, but no less than a reasonable degree of care.
4.3 Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies or extracts thereof) will be returned to the disclosing party, or, at the option of the disclosing party, destroyed, and the receiving party will make no further use of such materials.
4.4 If required by law, regulation or order of any government, government agency or court, the receiving party may disclose Confidential Information, but will promptly give notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
5. INTELLECTUAL PROPERTY
5.1 Ownership by VisibleGains. VisibleGains and its licensors owns all right, title and interest in and to the Application and any and all improvements, modifications, suggestions, enhancement requests, feedback, recommendations or derivative works thereof and any Intellectual Property Rights therein. Customer and its licensors shall maintain its right, title and interest in or to the Customer Information.
5.2 Trademarks. During the Term and subject to all terms and conditions herein, Customer grants to VisibleGains a nonexclusive right and license to use Customer trademarks, service marks, trade names and logotypes in accordance with Customer’s usage instructions (as provided to VisibleGains in writing), solely in connection with provision of the Application.
5.3 General Learning. Customer agrees that VisibleGains is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, trended metrics, processes and techniques) acquired hereunder.
5.4 No Implied Licenses. Nothing in this Agreement is intended to grant any rights to either party under any Intellectual Property Right of the other party, nor shall this Agreement grant either party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
5.5 Use of Name. Customer authorizes VisibleGains to include Customer’s name and logo on VisibleGains’s public customer list.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all requisite power and authority to enter into this Agreement, and (b) it has all necessary rights to grant the rights and licenses granted hereunder.
6.2 VisibleGains Warranties. VisibleGains represents and warrants to the Customer that (a) it will perform the Services in a professional and workmanlike manner, and (b) the Application substantially conforms to the documentation accompanying the Application.
6.3 Customer Warranties. Customer represents and warrants to VisibleGains that Customer Information (y) is not infringing, misappropriated, defamatory, obscene or violative of the privacy or other rights of a third party and Customer has obtained all applicable rights and clearances for any third party content, and (z) complies with all applicable federal, state and local laws and regulations, including, but not limited to, applicable federal and state consumer privacy laws, rules, and regulations.
6.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, VISIBLEGAINS MAKES NO WARRANTIES TO CUSTOMER WITH RESPECT TO ITS OBLIGATIONS RELATED TO THE APPLICATION OR SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT, ALL OF WHICH ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. VISIBLEGAINS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. VISIBLEGAINS DOES NOT WARRANT THAT THE APPLICATION OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED.
7. INDEMNIFICATION
7.1 By VisibleGains. VisibleGains agrees to defend, indemnify and hold harmless Customer and its officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded by a court or settled, arising from any claim or allegation by a third party that the Services or Application infringes or misappropriates a valid United States patent, copyright or trademark right of a third party. If any of the Services or Application becomes or, in VisibleGains’s opinion, is likely to become the subject of an injunction, VisibleGains may, at its option, (a) procure for Customer the right to continue using such Services or Application, (b) replace or modify such Services or Application so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not reasonably available to VisibleGains, then (c) terminate this Agreement in respect of the allegedly infringing Services or Application. The foregoing states the entire liability of VisibleGains with respect to infringement of patents, copyrights, trademarks or other intellectual property rights. The foregoing obligations shall not apply to: (i) Services or Application modified by any party other than VisibleGains, if the alleged infringement relates to such modification, (ii) Services or Application combined or bundled with any non-VisibleGains products, processes or materials where the alleged infringement relates to such combination, or (iii) Services or Application created to the specifications of Customer.
7.2 By Customer. Customer agrees to defend, indemnify and hold harmless VisibleGains and its officers, directors, employees and agents from and against any and all claim, liability, loss, penalty, damage, cost and expense (including reasonable attorneys’ fees), suffered by VisibleGains (and its directors, employees, and agents) arising from any claim or allegation by a third party arising from the Customer Information and any claim or allegation that the Customer Information is infringing, misappropriated, defamatory, obscene or violative of the publicity, privacy or any other right of a third party.
7.3 Indemnification Procedure. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) it having sole control and authority to defend, settle or compromise such claim, provided that any settlement that does not include the complete release of the indemnified party from liability will require the prior written consent of such indemnified party.
8. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO BREACHES OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (D) EXCEPT FOR AMOUNTS PAID IN RESPECT OF INDEMNIFICATION OBLIGATIONS, AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID OR PAYABLE TO VISIBLEGAINS BY CUSTOMER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. TERM AND TERMINATION
9.1 Term. Unless otherwise terminated as provided herein, this Agreement shall have a term mutually agreed by the parties in any order form for the Application or Services (the "Term").
9.2 Termination for Breach or Bankruptcy. Either party may terminate this Agreement (a) if the other party breaches a material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.3 Effects of Termination. Upon any termination or expiration of this Agreement, all rights, obligations and licenses hereunder shall cease, except that: (a) all obligations that accrued prior to the effective date of termination or expiration and any remedies for breach of this Agreement shall survive any termination or expiration; (b) Customer shall promptly return or destroy all tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media; (c) Customer will cease all use of the Application; (d) VisibleGains shall have no further obligation to provide Services and delete all Customer Information; and (e) the provisions of Sections 2.2, 3, 4, 5, 6.4, 7, 8, 9.3, 9.4 and 10 shall survive any termination or expiration of this Agreement. Customer acknowledges that VisibleGains will delete all Customer Information sixty (60) days after termination or expiration of this Agreement.
9.4 No Further Liability. Each Party understands that the rights of termination hereunder are absolute and it has no rights to a continued relationship with the other after termination (except as expressly stated herein). Neither party shall incur any liability whatsoever for any damage, loss or expense of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement by such party that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expense.
10. GENERAL PROVISIONS
This Agreement and any order form issued hereunder constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. VisibleGains shall not be liable for any default or delay in the performance of its obligations under this Agreement if such default or delay results from events beyond VisibleGains’s reasonable control that cause a delay or failure in the performance of VisibleGains’s obligations under this Agreement, including, without limitation, acts of any governmental body, war, insurrection, sabotage, terrorism, embargo, armed conflict, fire or other acts of God, strike or labor disturbances, Internet system unavailability, virus attacks, unavailability of or interruption or delay in telecommunications, or hackers, failure of third party software. Customer acknowledges and agrees that VisibleGains may use third parties to perform some or all of its obligations under this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Middlesex County, Commonwealth of Massachusetts, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. This Agreement and the rights and obligations hereunder are personal to each party, and may not be assigned or otherwise transferred, in whole or in part, without the other party’s prior written consent; provided that either party may assign this Agreement to a successor to all or substantially all of the assets or business of such party to which this Agreement relates, whether by merger, sale of stock, sale of assets or other similar transaction. Any attempt to do otherwise shall be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. VisibleGains may change the terms and conditions set forth in this Agreement from time to time and VisibleGains will post such changes on the VisibleGains website. Customer’s continued use of the Application constitutes Customer’s assent to any applicable changed terms and conditions.
