TEGRITY, INC.
TEGRITY LITE SUBSCRIPTION AGREEMENT AND TERMS OF SERVICE
This Agreement ("Agreement") is entered into between Tegrity, Inc., a California corporation having its principal place of business at 2520 Mission College Blvd. #101, Santa Clara, California 95054 U.S.A. ("Tegrity") and you ("Customer") (individually, "Party" and collectively, "Parties").
The parties agree as follows:
1. DEFINITIONS
"Content Creator" means a User authorized by Customer to use the Service to capture Customer Content.
"Customer Content" means information related to Customer's business purpose.
"Documentation" means User manuals that Tegrity provides to Customers generally in either tangible or electronic form, as they may be updated from time to time by Tegrity. Documentation does not include materials provided by Tegrity in connection with any training or certification.
"Order Form" means the paperwork documenting the initial purchase hereunder, which paperwork shall be generally in the form of Exhibit A attached hereto and shall specify, among other things, the Term of the Subscription, the authorized Users, and the applicable Fees. Any subsequent purchase(s) pursuant to this Agreement shall be documented in writing, executed by signature of both Parties, and deemed incorporated by reference into Exhibit A.
"Service" means the web-based content capture and delivery service developed by Tegrity and ordered by Customer hereunder, the specific components of which shall be specified on the Order Form and may include web services, storage and delivery services, associated offline components, hardware, software, and automatic updates thereto. "Service" as used herein shall be deemed to include any and all components ordered hereunder, except for Third Party Products as defined below, which may be used with the Service but shall not be deemed a component of the Service.
"Service-Generated Content" means the content created by using the Service to capture and assemble Customer Content.
"Third Party Product" means third-party, Service-compatible software, hardware or other functionality that Tegrity may offer to Customer from time o time for an additional fee and on a pass-through or OEM basis.
"User" means an individual authorized by the parties to use the Service to access Service-Generated Content.
2. SERVICE
2.1 Authorization & Access. Tegrity grants Customer a non-exclusive, non-transferable, non-sublicenseable right for you to use the Service in the Territory stated on Exhibit A during the Term solely for Customer's internal business purposes in accordance with the terms of this Agreement, including all Order Forms executed hereunder from time to time. The Service is "in use" when it is loaded into the temporary memory (i.e., RAM) of a computer or accessed via a browser. Access to the Service is authorized as described in Sections 2.1.1, 2.1.2 and 2.1.3 below, and shall be managed by Customer in accordance with the terms of this Agreement. Customer shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and shall notify Tegrity promptly of any known unauthorized use. Customer will cooperate with Tegrity, including, without limitation, in any legal action, to prevent or stop unauthorized use, reproduction, modification, distribution or sublicensing of the Service or any of its components, and/or to enforce the terms of this Agreement. Customer shall have sole responsibility for complying with all applicable local, state, federal, and foreign laws in using the Service and, if using the Service outside of the United States, for using the Service in a manner that would not violate any federal or state laws of the United States if conducted therein. Customer may make and distribute a reasonable number of copies of the Documentation and any training material provided by Tegrity solely as needed to instruct Users' on use of the Service. All rights not expressly set forth herein are reserved by Tegrity. Tegrity reserves the right to modify the Service from time to time during the Term, for example and without limitation, to accommodate the deletion or addition of a component of the Service.
2.1.1 Content Creators. Customer may authorize any User to input Customer Content into the Service to create and deliver Service-Generated Content. No content other than Customer Content may be input into the Service. The Service may not be used to create, assemble or deliver content other than Service-Generated Content. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
2.1.3 Demonstrations. Customer may demonstrate the Service to individuals who are not Users ("Non-Users"), provided that Customer ensures that Non-Users do not use the Service for delivery or receipt of any content other than Service-Generated Content, and do not sell the Service-Generated Content or derive any other benefit from having access to it.
2.2 Restrictions. Customer may not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly stated in this Agreement. Customer shall not use, copy, modify, create derivative works based on, sell, transfer or otherwise distribute the Service or any component thereof except as expressly permitted by this Agreement. To the fullest extent permissible by applicable law, Customer shall not disassemble, reverse engineer, or decompile the Service, and agrees not to develop competing technologies except to the extent that such: (i) is independently developed by Customer without access to or use of any portion of the Service or Tegrity's Confidential Information, and (ii) is not related to, based on or derived from, nor includes, any portion of the Service or Tegrity's Confidential Information. Customer shall not use the Service to send or store material known to Customer to be infringing, libelous, or otherwise unlawful or tortious, including material known to Customer to be harmful to children or violative of third party privacy rights, or to contain software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Customer shall not intentionally interfere with or disrupt the integrity or performance of the Service or the data contained therein, or attempt to gain unauthorized access to the Service or its related systems, components, or networks.
2.3 Third-Party Products. The use of any Third Party Product purchased by Customer shall be governed by those terms specified by such product's vendor, which terms shall prevail in the event of any inconsistency between them and the terms of this Agreement.
4. FEES. Tegrity Lite is free.
5. PROPERTY RIGHTS
5.1 Ownership. All right, title, and interest in and to the Service, Tegrity trademarks and Tegrity Confidential Information, any derivatives or modifications thereto or copies thereof, and all related technical know-how, are owned by and shall remain vested in Tegrity or Tegrity's suppliers. Customer retains all right, title and interest in Customer Content and other Customer Confidential Information. Customer feedback on the Service shall be owned by Tegrity. Customer shall promptly notify Tegrity of any known actual or threatened misappropriation or infringement of Tegrity's or Tegrity's suppliers' proprietary rights. Trademarks, brand names and copyright notices shall not be removed.
5.2 Trademark License. Customer may use Tegrity's trademarks and trade names ("Marks") during the Term for promoting the Service, in accordance with Tegrity's then-current Trademark Usage Guidelines. Customer shall use reasonable efforts to preserve Tegrity's rights in the Marks, and agrees that its use of the Marks shall be on Tegrity's behalf and shall inure to Tegrity's benefit. Customer shall not register or attempt to register any Mark, or do anything else to contest or impair Tegrity's rights in the Marks. Customer shall promptly revise any use of the Marks or other references to the Service in Customer's promotional materials upon Tegrity's reasonable request.
6. CONFIDENTIALITY
6.1 Definition. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("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 (including pricing and other terms reflected in the Order Form), the Service, the Tegrity Technology, User information, business and marketing plans, technology and technical information, product designs, and business processes, audio and visual information, documents, software and other works of authorship and technology, program source and object code, data and materials, and all related technical know-how and any derivatives or modifications thereto or copies thereof, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information of a Party.
6.2 Exceptions. 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.
6.3 Obligation. 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 shall either party exercise less than reasonable care in protecting such Confidential Information. Each Party agrees not to use Confidential Information of the other Party except in performance of this Agreement, and not to disclose such information to third parties except with the Disclosing Party's prior written permission or unless required by law. 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 Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, 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 are inadequate.
7. WARRENTY AND DISCLAIMERS
Tegrity warrants that during the Term of this Agreement, the Service shall perform materially in accordance with the Documentation under normal use and the Services will be provided in a manner consistent with generally accepted industry standards. Customer's sole remedy for a breach of this limited warranty shall be the repair or replacement of the defective component of the Service, or if such repair or replacement is not possible after all reasonable commercial efforts by Tegrity, a refund of Fees paid for such defective component, such refund to be pro-rated over a five-year period or the Term of this Agreement, whichever is shorter. The foregoing notwithstanding, any hardware and software components manufactured by companies other than Tegrity are covered only by their respective original manufacturers' warranties; any such hardware products that are defective must be returned to the manufacturers or their authorized representatives under the terms of the manufacturers' warranty policies. Tegrity does not warrant any Third-Party Products, whether or not they are designated by Tegrity as "certified," "validated" or otherwise. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TEGRITY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO CUSTOMER. Customer agrees that its consent to the terms and conditions of this Agreement is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by Tegrity with respect to future functionality or features. Customer assumes the entire cost of any damage resulting from the information contained in the Customer Content.
8. LIMITAION OF LIABILITY
To the maximum extent permitted by applicable law, in no event shall Tegrity or its suppliers be liable for any damages whatsoever, including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, or any form of indirect, special, incidental or consequential damages, arising out of the use or inability to use the Service, even if Tegrity has been advised of the possibility of such damages. In no event shall Tegrity's total liability to Customer for all damages in any one or more cause of action exceed the amount paid by Customer for the Service in the previous twelve-month period. This limitation shall apply regardless of the failure of essential purpose of any remedy available to Customer. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Customer.
9. INDEMNIFICATION
9.1 Customer Indemnification. Subject to this Agreement, Customer shall defend, indemnify and hold Tegrity harmless from and against all third-party claims and/or any loss or damage (including reasonable attorneys' fees and costs), made against or incurred by Tegrity or its suppliers to the extent arising from Customers acts, omissions and misrepresentations, including, without limitation, Customer's distribution of the Service beyond what is expressly authorized by this Agreement and any and all information contained in the Customer Content.
9.2 Tegrity Indemnification. Subject to this Agreement, Tegrity shall defend, indemnify and hold Customer harmless from and against all third-party claims and/or any loss or damage (including reasonable attorneys' fees and costs) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the copyright, trademark, trade secret or United States patent rights of a third party; provided that Customer (a) promptly gives written notice of the Claim to Tegrity (but only to the extent that delay in giving notice materially prejudices Tegrity's ability to fulfill its obligations under this Section 9); (b) gives Tegrity sole control of the defense and settlement of the Claim; and (c) provides to Tegrity, at Tegrity's cost, all reasonable assistance. If the Service is held or is likely to be held infringing, Tegrity shall have the option, at its own expense, to modify the Service such that it no longer infringes or misappropriates, to obtain a license for Customer to continue using the Service, to replace the Service with functionally-equivalent components, or, if none of the foregoing options is commercially practicable, to terminate this Agreement or the authorization to use the infringing component and refund Fees paid by Customer for such affected components, pro-rated over a five-year period or the Term of this Agreement, whichever is shorter.
10. TERM AND TERMINATION
10.1 Term. This Agreement commences when the Customer agrees to the terms while registering on the Tegrity website or the first time the Customer logs in to the Service and shall remain in effect for as long as the Customer continues to use the Service, but not longer than for one (1) academic year. Tegrity reserves the right to shorten the term or terminate the Service at any time for any reason without notice.
10.2 Termination. Either Party may terminate this Agreement at any time without notice to the other Party.
10.3 Effect of Termination. Upon expiration or termination of this Agreement, Customer's authorization to use the Service shall automatically terminate. Customer shall remove from its systems and destroy any and all non-hardware components of the Service in its possession within five (5) days after expiration or termination of this Agreement, and so certify to Tegrity upon request.
10.4 Survival. Sections 1, 2.2, 2.3, 5, 6, 7, 8, 9, 10 and 11, and any outstanding obligations to pay fees due hereunder, shall survive the expiration or termination of this Agreement.
11. GENERAL
11.1 Independent Contractors. The parties hereto are independent contractors; this Agreement shall not create a partnership or joint venture of any kind.
11.2 Assignment. Tegrity may assign this Agreement in whole or part by operation or law or otherwise. Customer shall not assign this Agreement to any other party and may not delegate its duties hereunder without the prior written consent of Tegrity. The provisions of this Section 11.2 shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.
11.3 Publicity. A party to this Agreement may issue press releases relating to this Agreement only with the other party's prior written consent. Either 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.
11.4 Legal Notices. All legal notices to Tegrity shall be sent to: Tegrity, Inc., 2520 Mission College Blvd., Suite 101, Santa Clara, CA 95054. Notices may be sent by registered mail, express courier, email, or facsimile, and shall be deemed given one day after delivery to a courier, or one day after faxing such notice, as the case may be.
11.5 Disputes. This Agreement is governed by the laws of the United States and the State of California, without reference to conflict of laws principles. Any dispute arising out of or relating to this Agreement shall be first escalated to senior management of each company. The parties prefer that disputes not resolved by such escalation be finally settled by binding arbitration in Santa Clara, California under the rules of the American Arbitration Association, by a panel of three arbitrators reasonably familiar with the technology and business pertaining to the Service covered by this Agreement, appointed in accordance with said rules. The arbitration and all pleadings and written evidence shall be in the English language. Judgment on the award entered by the arbitrator may be entered in any court having jurisdiction thereof. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorneys' fees, court costs and other collection expenses, in addition to any other relief it may receive.
11.6 Force Majeure. The obligations of the Parties are mutually contingent upon acts of nature, such as floods, fires, storms; acts of war, insurrection or terrorism; strikes; riots; and any other acts of force majeure as well as governmental restrictions, prohibitions, and occurrences beyond the reasonable control of the Parties to the extent that the same are the direct cause for rendering the Parties' performance of this Agreement impossible, illegal, or commercially impracticable, always provided that the Party claiming the benefit of this Section 11.6 shall use diligence to fulfill the obligations under this Agreement with the shortest possible delay.
11.7 Export Restrictions. Each Party shall be responsible for its own compliance with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.8 U.S. Government-Restricted Rights. The Documentation and all software components of the Service are deemed to be "commercial computer software documentation" and "commercial computer software," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of such Documentation or software by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted herein.
11.9 Rights and Remedies. A breach of Section 2.1, 5 or 6 may cause irreparable injury for which no adequate remedy at law exists; therefore, the Parties agree that equitable remedies, including without limitation injunctive relief and specific performance, may be appropriate remedies to redress any breach or threatened breach of Sections 2.1, 5 and 6, in addition to all other remedies available to the Parties. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive, except to the extent expressly set forth herein. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right, any waiver of a right hereunder must be in writing, and no waiver or any provision or right shall affect the right of the waiving Party to enforce any other provision or right herein.
11.10 Compliance. During the term of this Agreement and for one year after its termination or expiration, Customer shall maintain and make available to Tegrity accurate records to permit Tegrity or an independent auditor retained by Tegrity to verify, upon ten days' written notice, Customer's full compliance with the terms and requirements of this Agreement; provided that such audit shall not occur more than once in any one-year period unless a material underpayment is discovered, and shall be performed during regular business hours. If such verification process reveals any noncompliance by Customer with this Agreement, Customer shall reimburse Tegrity for the reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor) incurred by Tegrity and pay Tegrity for any use of the Service beyond the scope authorized herein at Tegrity's then-current list price, and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this Section 11.10 shall not constitute a waiver of Tegrity's termination rights or any other rights hereunder.
11.11 Entire Agreement. This Agreement is the entire Agreement between Customer and Tegrity with respect to the subject matter hereof, and supersedes any other communications, advertising or prior agreements. No modifications to this Agreement may be made unless written and signed by both Parties. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.