These terms and conditions supplement each corporate training agreement (Training Agreement) and are incorporated by reference thereto. All capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Training Agreement. The Company reserves the unilateral right to update, supplement, alter, or modify these Terms of Service without prior notice. These terms and conditions, together with the Training Agreement, are sometimes referred to herein as the Agreement.
1. Services Provided
The Company shall be responsible for providing the services to the Client set forth in the Training Agreement (the Services). The Parties hereby agree that the Company shall perform no services except the Services. The Parties agree that they will enter into a separate written agreement with respect to any other services which either Party offers to the other.
2. Compensation
The Client shall pay the Company the amounts set forth in the Training Agreement, payable as set forth in the Training Agreement (the Compensation). The Parties hereby agree that such Compensation shall constitute the full and total amount of monetary consideration due to the Company under this Agreement, and the Client shall not be required to withhold any taxes required to be paid in connection with such Compensation, and the Company agrees and covenants that it will make any and all necessary payments of Federal, state or local taxes required to be paid in connection therewith. The Client hereby agrees that the payment of undisputed amounts not received within ten (10) Business Days of the date of the invoice shall bear interest at one and one-half percent (1.5%) per month. In the event of a default in the payment of an invoice, the Client shall be responsible for the Company’s costs of collection, including, but not limited to, court costs, filing fees, and reasonable attorney and collection agency fees. Business Day shall mean any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, San Francisco, CA.
3. Agency
The Company shall be solely responsible for determining the method, details and means of performing the Services performed hereunder. Neither the Company nor any agent or employee of the Company has authority to enter into contracts that bind the Client or create obligations on the part of the Client without the prior written authorization of the Client. The Parties hereby agree that the Company may, in its sole and absolute discretion, determine which of its employees and agents are made available with respect to the performance of the Services, and may change such employees or agents at any time thereafter in the Company’s sole and absolute discretion; provided, however, that in the event that the Client is unhappy with any employee or agent of the Company provided to perform all or a portion of the Services, the Client will notify the Company of the same and the Company will make good faith commercially reasonable efforts to correct any problems or, if necessary, provide replacement employees and/or agents. Notwithstanding any of the foregoing, the Parties hereby agree that the Company shall have no obligation to take any steps to replace any employee or agent if the Company reasonably believes that the cause for such request was in violation of any applicable law or premised on any discrimination on the basis of sex, sexual orientation, age, religion, race, ethnic origin or disability.
4. General Terms and Conditions
The Parties hereby agree that nothing contained in this Agreement is intended to create a partnership, joint venture or other legal entity and that neither Party shall in any way represent to any third Person that a partnership, joint venture or other legal entity has been formed as a result of this Agreement or the Parties relationship hereunder generally.
5. Limitation on Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES PURSUANT TO THIS AGREEMENT EXCEPT FOR VIOLATIONS OF THE LIMITED LICENSE (AS DEFINED IN THE TRAINING AGREEMENT) OR SECTION 8 OF THESE TERMS AND CONDITIONS.EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT,THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY OF ITS SERVICES OR PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ALL SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY.
6. Limitations on Amendments
The Parties hereby agree that, unless the Company elects otherwise in its sole and absolute discretion, the following limitations apply to amendments to the terms pursuant to which the Company performs its Services pursuant to this Agreement:
The Parties agree that the Company will rely on the scope of work initially agreed upon between the Company and the Client for provision of the Services pursuant to this Agreement and any change will cause the Company to suffer material losses. As a result, the Parties agree that the Client may change the scope of work (including, but not limited to, changing the dates or times for the performance of Services, changing the content of the course or its syllabus, or changing the materials required) for the performance of the Services only if it agrees to reimburse the Company for such losses, with a minimum cost in any event of an additional 10% (ten percent) to the original Compensation specified in this Agreement.
The Parties agree that the Company has fixed costs and will suffer material losses that cannot be mitigated if the time allocated to the provision of the Services or class size is reduced. As a result, the Parties hereby agree that any such reductions will not reduce the Compensation due to the Company in connection with this Agreement.
The Parties agree that the Client may increase the duration of the course and/or the size of classes offered if the Company is able to accommodate such expansion. In the event that the Company agrees to such expansion and unless otherwise agreed by the Parties, rates will be increased based on the initial rates per person (for increases in class size) or per day (for increases in duration) or as otherwise stated in the Training Agreement.
7. Ownership of Intellectual Property
The Parties hereby agree that, notwithstanding the grant of the Limited License set forth in the Training Agreement, the Company remains the sole owner of all right, title and interest in and to the Company’s services and products, and all brand names, trademarks, tradenames, service marks and/or copyrights associated with the Company’s business, including any videos, photographs, brochures or other media (in any form whatsoever, whether now known or hereafter existing), whether produced before or after the provision of the Services or created during the performance of the Services or incidental thereto, in any form or medium whatsoever.
8. Protection of Company Assets
The Parties understand and agree that the Company has invested considerable time and effort in preparing its materials and in identifying and working with instructors to provide the Services, and that the Company is entering into this Agreement in reliance, upon other things, of the Client’s agreement not to take any actions that would cause harm to the Company in this regard. As a result, the Client hereby agrees that (a) except pursuant to express prior written permission of the Company, at no time will it transfer, reproduce, copy or otherwise disseminate any recording of any portion of the Services or any other property of the Company in any form or medium whatsoever to any Person not directly receiving the Services (i.e., not in attendance (physically or virtually) at the training course(s) included in the Training Agreement), or permit any other Person to transfer the same, including temporary transfers to its employees and agents (b) the Client will enforce the limitations referenced in subsection (a), above, on its employees, contractors and agents with the same diligence and promptness with which it would enforce limitations on its own proprietary and/or confidential information; and (c) during the Term of this Agreement and, following termination of this Agreement, for a period of six (6) months following such date of termination (whether by contract, operation of law, or otherwise), the Client shall not, without the express prior written permission of the Company, individually or in association with any other Person, directly or indirectly solicit or engage in any business (whether as an employee, consultant, director, partner, member, owner or shareholder) any instructor engaged or employed by the Company to perform instructional services that are substantially similar to the Company Services provided pursuant to this Agreement.
The Parties hereby agree that because the measure of damages is difficult to ascertain, in the event the Client breaches or attempts to breach any of the provisions set forth in Section 8, the Company shall be entitled to seek injunctive relief, specific performance, and all other equitable remedies, damages (including special, punitive or consequential damages and reasonable attorneys’ and court fees), and all other rights and remedies provided in equity, in each case without the necessity of posting of any bond or demonstrating the actual measure of loss. The Parties hereto agree that this Section 8 constitute fair and reasonable restrictions, and that such provisions are reasonably required for the protection of the Company’s interests. The Parties further agree that in the event any of the prohibitions or restrictions set forth in this Section 8 are found by a court or arbitrator of competent jurisdiction to be unreasonable or otherwise unenforceable, it is the purpose and intent of the Parties that any such prohibitions or restrictions be deemed modified or limited so that, as modified or limited, such prohibitions or restrictions may be enforced to the fullest extent possible.
The representations, warranties, covenants and other agreements contained in this Section 8 shall survive execution of this Agreement.
9. Representations and Warranties of the Parties
Each of Client and Company represents and warrants to the other that (i) it is a legal entity duly organized, validly existing, and in good standing under the laws of the state of its formation and is authorized to do business in each jurisdiction in which it conducts its business; (ii) its execution and performance under this Agreement does not violate any existing obligations or contracts of such party; (iii) it has the full legal right, power, and authority to enter into and perform this Agreement; (iv) the individuals signing this Agreement on its behalf are authorized to execute this Agreement and that no further proof of authorization shall be required; and (v) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of this Agreement.
10. Force Majeure Provision for Terms and Conditions
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control (each, a “Force Majeure Event”), including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) disease, epidemics or pandemics; (h) national or regional emergency; (i) strikes, labor stoppages or slowdowns or other industrial disturbances; and (j) any other similar events or circumstances. The party suffering a Force Majeure Event shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
11. Waiver; Assignment
Any consent by any Party, or waiver of, a breach of any provision of this Agreement by the other Party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any breach of any other provision or subsequent breach of the same provision. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may not be assigned by either Party without the prior express written consent of the other Party. Any purported assignment in violation of this Section10 shall be deemed null and void ab initio and of no legal force or effect.
12. Governing Law
This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of or relating in any way whatsoever (whether in contract, tort or otherwise) to this Agreement shall be governed by, the law of the State of California.
13. Binding Arbitration; Venue; Waiver of Jury Trial
Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the City of San Francisco, California before JAMS by a single JAMS arbitrator pursuant to the Expedited Rules and Procedures of JAMS. The arbitrator shall have the authority, in his sound discretion, to order the Parties to engage in good faith mediation of any dispute.
Awards granted hereunder shall be in writing and shall contain a discussion of the legal and factual issues being addressed, as well as the rationale of the arbitrator. Judgment on the award may be entered in any court of competent jurisdiction. Nothing herein shall preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction as set forth above. The Parties shall bear their own legal fees and costs incurred in connection with any arbitration. Forum fees shall be borne equally among the Parties. Each Party shall pay its share of the forum fees when due. If a Party should fail to pay its forum fees when due, the arbitrator is authorized, on motion, to grant provisional relief requiring that party to pay such forum fees.
Except as set forth above, the Parties hereby irrevocably submit to the exclusive jurisdiction of any California State or Federal court sitting in the City of San Francisco in any action or proceeding arising out of or relating to this Agreement, and the Parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such California State or Federal court. The Parties hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). Each Party hereby (i) certifies that no representative, agent or attorney of the other has represented, expressly or otherwise, that the other would not, in the event of a proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 13.
14. Miscellaneous
This Agreement is solely for the benefit of the Parties, and each Party hereby agrees that nothing in this Agreement shall entitle any Person other than the Parties to any claim, cause of action or right of any kind. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of an electronic signature page to this Agreement in PDF format shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement will not be effective until each Party has executed one counterpart. The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof. Any provision of this Agreement or any other document or instrument provided for herein or therein which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof or affecting the validity or enforceability of such provision in any other jurisdiction. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties pertaining to the subject matter of this Agreement. The language used in this Agreement will be deemed the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against either Party.
15. Confidential Information
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances surrounding disclosure, including all Order Forms, Customer Data, and all non-public business, technology, product, roadmap, financial, pricing, marketing and sales information. Notwithstanding the foregoing, Confidential Information will not include any information which: (a) is or becomes generally available to the public without breach of any obligation owed to the disclosing party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
Feedback. The Client may, from time to time, provide the Company with suggestions or comments for improvements, updates, new features, functionality, or other feedback (“Feedback”) related to the services provided under this Agreement. The Company will have full discretion to determine whether to proceed with the development of any requested improvements, new features, or functionality. The Company will have the full, unrestricted right, without any obligation to compensate or reimburse you, to use, incorporate, and fully exploit any such Feedback in connection with its products and services.
Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Notwithstanding the foregoing, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors, contractors, and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement (and for whom each party is responsible for any breach of this Agreement); and (b) as required by law (in which case, to the extent legally permitted, the receiving party will limit the disclosure to that required by law and provide the disclosing party with prior written notification thereof in order to allow disclosing party the opportunity to contest such disclosure).
Neither party will disclose the terms of this Agreement to any third party, except that the Company may confidentially disclose such terms to actual or potential lenders, investors, or acquirers. Receiving party agrees to use the same degree of care that it uses to protect its own confidential and proprietary information to prevent the unauthorized use or disclosure of disclosing party’s Confidential Information, but in no event less than a reasonable degree of care.
Upon request, each party, as applicable, agree to promptly return or destroy the other party’s Confidential Information, provided that each party may retain copies of such information solely as required for ordinary course records retention, backup policies, or compliance with applicable law, provided that such retained information continues to be treated as Confidential Information under the terms of this Agreement.
Restrictions. The Client will not, and shall ensure that any Authorized Users will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, copy, create derivative works of or otherwise create, attempt to create or derive the source code, object code or underlying structures, ideas or algorithms of the Services or any data related thereto; (b) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization, or render any part of the Services unusable; (c) use or access the Services to develop a product or service that is competitive with the Company’s products or services or engage in competitive benchmarking; (d) share, transfer, distribute, resell, lease, license, sublicense, make available or otherwise offer the Services on a standalone basis; (e) remove any proprietary notices from the Services or related Documentation; (f) provide any infringing, offensive, fraudulent or unlawful content in connection with the Services (any such content may be reported at legal@productschool.com); (g) use the Services or related Documentation in any manner or for any purpose that violates this Agreement or Applicable Law, or infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person (collectively, the “Restrictions”).
These terms and conditions supplement each sponsorship agreement (Sponsorship Agreement) and are incorporated by reference thereto. All capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Sponsorship Agreement. The Company reserves the unilateral right to update, supplement, alter, or modify these Terms of Service without prior notice. These terms and conditions, together with the Sponsorship Agreement, are sometimes referred to herein as the Agreement.
1. Services Provided
The Sponsor shall be responsible for providing the services to the Company set forth in the Sponsorship Agreement (the Sponsor Services), and the Company shall be responsible for providing the services to the Sponsor set forth in the Sponsorship Agreement (the Company Services). The Parties hereby agree that the Sponsor shall perform no services except the Sponsor Services, and the Company shall perform no services except the Company Services. The Parties agree that they will enter into a separate written agreement with respect to any other services which either Party offers to the other.
2. Compensation
The Sponsor shall pay the Company the amounts set forth in the Sponsorship Agreement, payable as set forth in the Sponsorship Agreement (the Compensation). The Parties hereby agree that such Compensation shall constitute the full and total amount of monetary consideration due to the Company under this Agreement, and the Sponsor shall not be required to withhold any taxes required to be paid in connection with such Compensation, and the Company agrees and covenants that it will make any and all necessary payments of Federal, state or local taxes required to be paid in connection therewith. The Sponsor hereby agrees that the payment of undisputed amounts not received within ten (10) Business Days of the date of the invoice shall bear interest at one and one-half percent (1.5%) per month. In the event of a default in the payment of an invoice, the Sponsor shall be responsible for the Company’s costs of collection, including, but not limited to, court costs, filing fees, and reasonable attorney and collection agency fees. Business Day shall mean any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, San Francisco, CA.
3. Agency
The Sponsor shall be solely responsible for determining the method, details and means of performing the Sponsor Services hereunder, and the Company shall be solely responsible for determining the method, details and means of performing the Company Services performed hereunder. Neither Party nor any agent or employee of such Party has authority to enter into contracts that bind the other Party hereto or create obligations on the part of the other Party hereto without the prior written authorization of such Party. The Parties hereby agree that each Party may, in its sole and absolute discretion, determine which of its employees and agents are made available with respect to the performance of such Party’s services, and may change such employees or agents at any time thereafter in such Party’s sole and absolute discretion.
4. General Terms and Conditions
The Parties hereby agree that nothing contained in this Agreement is intended to create a partnership, joint venture or other legal entity and that neither Party shall in any way represent to any third Person that a partnership, joint venture or other legal entity has been formed as a result of this Agreement or the Parties relationship hereunder generally.
5. Limitation on Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES PURSUANT TO THIS AGREEMENT EXCEPT FOR VIOLATIONS OF THE LIMITED LICENSE (AS DEFINED IN THE SPONSORSHIP AGREEMENT) OR SECTION 8 OF THESE TERMS AND CONDITIONS. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY OF ITS SERVICES OR PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ALL SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY.
6. Limitations
Nothing contained in these terms and conditions or the Sponsorship Agreement shall be deemed to in any way provide the Sponsor with an exclusive right to be the sole sponsor of the Event and the Company may, in its sole and absolute discretion, engage other sponsors; provided, however, that the Company hereby agrees that it will not, without the express prior written consent of the Sponsor, engage the sponsorship of any individual or entity that would reasonably be considered a competitor of the Sponsor.
7. Ownership of Intellectual Property
The Parties hereby agree that, notwithstanding the grant of the Limited License set forth in the Sponsorship Agreement, each Party remains the sole owner of all right, title and interest in and to such Party’s services and products, and all brand names, trademarks, tradenames, service marks and/or copyrights associated with such Party’s business, including any videos, photographs, brochures or other media (in any form whatsoever, whether now known or hereafter existing) in any form or medium whatsoever, whether such materials are produced before or after any Event.
8. Protection of Company Assets
The Parties understand and agree that the Company has invested considerable time and effort in preparing its materials and in identifying and working with instructors to provide the Company Services, and that the Company is entering into this Agreement in reliance, upon other things, of the Sponsor’s agreement not to take any actions that would cause harm to the Company in this regard. As a result, the Sponsor hereby agrees that (a) at no time will it transfer, reproduce, copy or otherwise disseminate any recording of any portion of the Company Services or any other property of the Company in any form or medium whatsoever, or permit any other Person to transfer the same, other than temporary transfers to its employees and agents and on the express written understanding that any individual receiving such materials is responsible for not disseminating them and for returning any copies in such individual’s possession upon request by the Sponsor; (b) the Sponsor will enforce the limitations referenced in subsection (a), above, with the same diligence and promptness with which it would enforce limitations on its own proprietary and/or confidential information; and (c) during the Term of this Agreement and, following termination of the Sponsorship Agreement, for a period of six (6) months following such date of termination (whether by contract, operation of law, or otherwise), the Sponsor shall not, without the express prior written permission of the Company, individually or in association with any other Person, directly or indirectly, solicit or engage in any business (whether as an employee, consultant, director, partner, member, owner or shareholder) any instructor engaged or employed by the Company to perform instructional services that are substantially similar to the Company Services provided pursuant to this Agreement.
The Parties hereby agree that because the measure of damages is difficult to ascertain, in the event the Sponsor breaches or attempts to breach any of the provisions set forth in Section 8, the Company shall be entitled to seek injunctive relief, specific performance, and all other equitable remedies, damages (including special, punitive or consequential damages and reasonable attorneys’ and court fees), and all other rights and remedies provided in equity, in each case without the necessity of posting of any bond or demonstrating the actual measure of loss. The Parties hereto agree that this Section 8 constitutes fair and reasonable restrictions, and that such provisions are reasonably required for the protection of the Company’s interests. The Parties further agree that in the event any of the prohibitions or restrictions set forth in this Section 8 are found by a court or arbitrator of competent jurisdiction to be unreasonable or otherwise unenforceable, it is the purpose and intent of the Parties that any such prohibitions or restrictions be deemed modified or limited so that, as modified or limited, such prohibitions or restrictions may be enforced to the fullest extent possible.
The representations, warranties, covenants and other agreements contained in this Section 8 shall survive execution of this Agreement.
9. Representations and Warranties of the Parties
Each of Sponsor and Company represents and warrants to the other that (i) it is a legal entity duly organized, validly existing, and in good standing under the laws of the state of its formation and is authorized to do business in each jurisdiction in which it conducts its business; (ii) its execution and performance under this Agreement does not violate any existing obligations or contracts of such party; (iii) it has the full legal right, power, and authority to enter into and perform this Agreement; (iv) the individuals signing this Agreement on its behalf are authorized to execute this Agreement and that no further proof of authorization shall be required; and (v) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of this Agreement.
10. Force Majeure Provision for Terms and Conditions
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (each, a “Force Majeure Event”), including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) disease, epidemics or pandemics; (h) national or regional emergency; (i) strikes, labor stoppages or slowdowns or other industrial disturbances; and (j) any other similar events or circumstances. The party suffering a Force Majeure Event shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
11. Waiver; Assignment
Any consent by any Party, or waiver of, a breach of any provision of this Agreement by the other Party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any breach of any other provision or subsequent breach of the same provision. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may not be assigned by either Party without the prior express written consent of the other Party. Any purported assignment in violation of this Section 11 shall be deemed null and void ab initio and of no legal force or effect.
11. Governing Law
This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of or relating in any way whatsoever (whether in contract, tort or otherwise) to this Agreement shall be governed by, the law of the State of California.
12. Binding Arbitration; Venue; Waiver of Jury Trial
Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the City of San Francisco California before JAMS by a single JAMS arbitrator pursuant to the Expedited Rules and Procedures of JAMS. The arbitrator shall have the authority, in his sound discretion, to order the Parties to engage in good faith mediation of any dispute.
Awards granted hereunder shall be in writing and shall contain a discussion of the legal and factual issues being addressed, as well as the rationale of the arbitrato. Judgment on the award may be entered in any court of competent jurisdiction. Nothing herein shall preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction as set forth above. The Parties shall bear their own legal fees and costs incurred in connection with any arbitration. Forum fees shall be borne equally among the Parties. Each Party shall pay its share of the forum fees when due. If a Party should fail to pay its forum fees when due, the arbitrator is authorized, on motion, to grant provisional relief requiring that party to pay such forum fees.
Except as set forth above, the Parties hereby irrevocably submit to the exclusive jurisdiction of any California State or Federal court sitting in the City of San Francisco in any action or proceeding arising out of or relating to this Agreement, and the Parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such California State or Federal court. The Parties hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). Each Party hereby (i) certifies that no representative, agent or attorney of the other has represented, expressly or otherwise, that the other would not, in the event of a proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 13.
14. Miscellaneous
This Agreement is solely for the benefit of the Parties, and each Party hereby agrees that nothing in this Agreement shall entitle any Person other than the Parties to any claim, cause of action or right of any kind. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of an electronic signature page to this Agreement in PDF format shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement will not be effective until each Party has executed one counterpart. The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof. Any provision of this Agreement or any other document or instrument provided for herein or therein which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof or affecting the validity or enforceability of such provision in any other jurisdiction. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties pertaining to the subject matter of this Agreement. The language used in this Agreement will be deemed the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against either Party.
15. Confidential Information
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances surrounding disclosure, including all Order Forms, Customer Data, and all non-public business, technology, product, roadmap, financial, pricing, marketing and sales information. Notwithstanding the foregoing, Confidential Information will not include any information which: (a) is or becomes generally available to the public without breach of any obligation owed to the disclosing party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
Feedback. The Sponsor may, from time to time, provide the Company with suggestions or comments for improvements, updates, new features, functionality, or other feedback (“Feedback”) related to the services provided under this Agreement. The Company will have full discretion to determine whether to proceed with the development of any requested improvements, new features, or functionality. The Company will have the full, unrestricted right, without any obligation to compensate or reimburse you, to use, incorporate, and fully exploit any such Feedback in connection with its products and services.
Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Notwithstanding the foregoing, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors, contractors, and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement (and for whom each party is responsible for any breach of this Agreement); and (b) as required by law (in which case, to the extent legally permitted, the receiving party will limit the disclosure to that required by law and provide the disclosing party with prior written notification thereof in order to allow disclosing party the opportunity to contest such disclosure).
Neither party will disclose the terms of this Agreement to any third party, except that the Company may confidentially disclose such terms to actual or potential lenders, investors, or acquirers. Receiving party agrees to use the same degree of care that it uses to protect its own confidential and proprietary information to prevent the unauthorized use or disclosure of disclosing party’s Confidential Information, but in no event less than a reasonable degree of care.
Upon request, each party, as applicable, agree to promptly return or destroy the other party’s Confidential Information, provided that each party may retain copies of such information solely as required for ordinary course records retention, backup policies, or compliance with applicable law, provided that such retained information continues to be treated as Confidential Information under the terms of this Agreement.
Restrictions. The Sponsor will not, and shall ensure that any Authorized Users will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, copy, create derivative works of or otherwise create, attempt to create or derive the source code, object code or underlying structures, ideas or algorithms of the Services or any data related thereto; (b) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization, or render any part of the Services unusable; (c) use or access the Services to develop a product or service that is competitive with the Company’s products or services or engage in competitive benchmarking; (d) share, transfer, distribute, resell, lease, license, sublicense, make available or otherwise offer the Services on a standalone basis; (e) remove any proprietary notices from the Services or related Documentation; (f) provide any infringing, offensive, fraudulent or unlawful content in connection with the Services (any such content may be reported at legal@productschool.com); (g) use the Services or related Documentation in any manner or for any purpose that violates this Agreement or Applicable Law, or infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person (collectively, the “Restrictions”).
