The Fine Print
LeaderAmp Terms and Conditions
In consideration of the mutual promises and agreements set forth in these Terms, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, the parties agree as follows:
1.1 “Activation Date” means the date, set forth in the applicable Order Form, on which the Leaderamp Services are scheduled to be made available to Customer.
1.2 “Coaching Services” means the executive coaching services provided by Leaderamp and Leaderamp’s third party contractors.
1.3 “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by the Leaderamp Services .
1.4 “Customer System” means Customer’s internal website(s), computers, and other equipment and software used in the conduct of Customer’s business.
1.5 “Documentation” means the online user instructions and help files made available by Leaderamp for use with the Service, as may be updated from time to time by Leaderamp.
1.6 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.7 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.8 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.9 “Order Form” means the ordering documents for Leaderamp Services purchased from Leaderamp that are executed hereunder by the parties from time to time, including modifications, supplements and addenda thereto. Order Forms shall be be in the form set forth in Exhibit A and deemed incorporated herein.
1.10 “Leaderamp Services” means the Service and any Coaching Services (if applicable).
1.11 “Subscription Start Date” means the date, specified on the applicable Order Form, on which the Leaderamp Services set forth on that Order Form are first made available to Customer.
1.12 “Subscription Term” means the subscription period for Customer’s use of the Service set forth in the applicable Order Form.
1.13 “Service” means Leaderamp’s executive coaching platform, made available to customers via the internet on a software-as-a-service basis.
1.14 “Support Services” means the support and maintenance services offered by Leaderamp and any upgraded or premium support and maintenance services, if made available by Leaderamp and purchased by Customer separately pursuant to an Order Form.
1.15 “Third Party Offerings” means certain materials, information, software or services delivered or performed by third parties that are required for the operation of the Service, or to which the Service may link or otherwise provide access.
1.16 “Users” means Customer’s employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Service during the Subscription Term have been purchased pursuant to an Order Form, (b) who are authorized by Customer to access and use the Leaderamp Services, and (c) who have been supplied user identifications and passwords for such purpose by Customer (or by Leaderamp at Customer’s request).
2. ORDERS; LICENSES; AND RESTRICTIONS.
2.1 Orders. Subject to the terms and conditions contained in these Terms, Customer may purchase Coaching Services and subscriptions for Users to access and use the Service. Unless otherwise specified in the applicable Order Form, (a) no more than the number of Users specified in the applicable Order Form may access and use the Service, (b) additional User subscriptions may be added at any time during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term. User subscriptions are for designated Users only and cannot be shared or used by more than one User. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Leaderamp regarding any future functionality or features. If there is any inconsistency between an Order Form and these Terms, the Order Form shall control.
2.2 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, Leaderamp hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable (a) license, without the right to sublicense, for its Users to access and use the Service in accordance with the Documentation, and (b) license to download Leaderamp’s mobile software applications used to access and use the Service, in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer’s use of the Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation. Customer`s use of downloadable mobile applications may be subject to additional terms and conditions, and Customer agrees to comply with all such terms and conditions.
2.3 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Service; (b) modify, translate, or create derivative works based on any element of the Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) use the Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Service without Leaderamp`s prior written consent; (g) use the Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Service; or (i) attempt to gain unauthorized access to the Service or their related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Leaderamp.
3. THIRD PARTY OFFERINGS.
3.1 Use of Third Party Offerings. Leaderamp and/or third parties may from time to time make Third Party Offerings available to Customer. Any acquisition by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. Uness otherwise expressly stated, Leaderamp does not endorse any Third Party Offering. Leaderamp does not warrant or support any Third Party Offering, whether or not it is designated by Leaderamp as “certified” or otherwise, except as specified in an Order Form. If Customer installs or enables any Third Party Offering for use with Service, Customer acknowledges that Leaderamp may allow providers of that Third Party Offering to access Customer Data as required for the interoperation and support of such Third Party Offering with the Service. Leaderamp shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings.
3.2 Leaderamp may use the services of one or more third parties to deliver any part of the Leaderamp Services. If permitted to do so, Leaderamp will pass-through any warranties to the extent that Leaderamp receives any from its then current third-party service provider. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
4. PASSWORDS; SECURITY.
4.1 Passwords. Leaderamp will issue Customer user logins and passwords for each of Customer’s Users authorized to access and use the Service. Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of the Service that occurs using logins and passwords Leaderamp issues to any of its Users and shall restrict its Users from sharing passwords. Customer agrees to immediately notify Leaderamp of any unauthorized use of any account, login or password issued to Customer or Customer’s Users, or any other breach of security known to Customer. Leaderamp shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
4.2 No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Service. Customer will immediately notify Leaderamp of any breach, or attempted breach, of security known to Customer.
4.3 Security. Leaderamp will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Leaderamp, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and Customer Data. Leaderamp cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient. Leaderamp shall not (a) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (b) access Customer Data except to provide the Leaderamp Services and prevent or address service or technical problems, or at Customer`s request in connection with customer support matters.
5. CUSTOMER OBLIGATIONS.
5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and its Users to access and use the Service; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Service via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms, an Order Form or a Statement of Work, Leaderamp shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
5.2 Acceptable Use Policy. Customer shall be solely responsible for its actions and the actions of its Users while using the Leaderamp Services. Customer acknowledges and agrees that it and its Users shall: (a) abide by all local, state, national, and international laws and regulations applicable to the use of the Leaderamp Services, including without limitation the provision of Customer Data; (b) not send or store data on or to the Service which violates the rights of any individual or entity established in any jurisdiction; (c) not upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Service or another`s computer or mobile device; (e) not use the Leaderamp Services for illegal, fraudulent, unethical or inappropriate purposes; (f) not interfere with or disrupt networks connected to the Service or interfere with other ability to access or use the Service; (g) not distribute, promote or transmit through the Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not interfere with another customer’s use and enjoyment of the Service or another person or entity`s use and enjoyment of similar services; (j) not use the Leaderamp Services in any manner that impairs the Service, including without limitation the servers and networks on which the Service is provided; (k) comply with all regulations, policies and procedures of networks connected to the Service and Leaderamp’s service providers; and (l) use the Service only in accordance with the Documentation. Customer acknowledges and agrees that Leaderamp neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined in Section 12.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Leaderamp may remove any violating content posted or stored using the Service or transmitted through the Service, without notice to Customer. Notwithstanding the foregoing, Leaderamp does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored in the Service for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the Service. Leaderamp reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in these Terms at any time. Leaderamp may deliver notice of such updated requirements to Customer via e-mail or through the Service. Customer’s continued access to and use of the Service following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.
5.3 Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Leaderamp to communicate with Customer from time to time regarding the Leaderamp Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Leaderamp of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Leaderamp at the e-mail addresses specified by its Users for login purposes. In addition, Customer agrees that Leaderamp may rely and act on all information and instructions provided to Leaderamp by Users from the above-specified e-mail address.
5.4 Temporary Suspension. Leaderamp may temporarily suspend Customer’s or any User’s access to the Service in the event that either Customer or any of its Users is engaged in, or Leaderamp in good faith suspects is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Leaderamp will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Leaderamp’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. Customer agrees that Leaderamp shall not be liable to Customer, any User or any other third party if Leaderamp exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Leaderamp’s reasonable satisfaction, Leaderamp shall reinstate Customer’s and/or its Users’ access to and use of the Service. Notwithstanding anything in this Section to the contrary, Leaderamp’s suspension of Service is in addition to any other remedies that Leaderamp may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Leaderamp may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
5.5 Evaluations. At Leaderamp’s request, Customer will provide Leaderamp with written or oral report(s) of the results of Customer’s evaluation of the Leaderamp Services, including, but not limited to, a report of any errors that Customer has discovered in the Service.
6.1 Availability. Subject to the terms and conditions of these Terms, Leaderamp will use commercially reasonable efforts to make the Service available with minimal downtime [24 hours a day, 7 days a week]; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Leaderamp will use commercially reasonable efforts to provide at least [48 hours] advance notice and routine maintenance times currently scheduled for every [Friday 11pm – Saturday 2am Pacific Time] and as otherwise specified by Leaderamp, or (b) any unavailability caused by circumstances beyond Leaderamp’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings. Certain enhancements to the Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Service may require the payment of additional fees, and Leaderamp will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Service includes, any enhancements, updates, upgrades and new modules to the Service subsequently provided by Leaderamp to Customer hereunder.
7. COACHING SERVICES. Customer acknowledges that the Coaching Services are provided by third party contractors under specific third party agreements with Leaderamp. Leaderamp is responsible for selecting qualified personnel to perform the Coaching Services and will have the right, in its reasonable discretion, to (i) designate which personnel it will assign to perform such Coaching Services and (ii) remove and replace such personnel at any time. In the event of any such removal or replacement, Leaderamp will use commercially reasonable efforts to limit the disruption to the Customer (or its applicable Users) in the transition of the Coaching Services to different personnel. Customer shall also have the right to request that Leaderamp replace the personnel providing Coaching Services to Customer and Leaderamp shall use reasonable commercial efforts to honor such requests.
8. FEES AND PAYMENT.
8.1 Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods Leaderamp supports. Except as otherwise specified in these Terms or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on the Leaderamp Services purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of Users cannot be decreased during the relevant Subscription Term shown on the applicable Order Form(s). User subscription fees are based on subscription periods that begin on the Subscription Start Date. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
8.2 Invoices and Payment. All fees for Leaderamp Services will be invoiced in advance and in accordance with the applicable Order Form. Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Leaderamp and notifying Leaderamp of any changes to such information.
8.3 Overdue Charges. If Leaderamp does not receive fees by the due date, then at Leaderamp’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
8.4 Suspension of Service. If any amounts owed by Customer for the Leaderamp Services are thirty (30) or more days overdue, Leaderamp may, without limiting Leaderamp’s other rights and remedies, suspend Customer’s and its Users’ access to the Leaderamp Services until such amounts are paid in full.
8.5 Payment Disputes. Leaderamp agrees that it will not exercise its rights under Section 8.3 (Overdue Charges) or 8.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
8.6 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with these Terms or any instrument, Order Form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under these Terms or under any Order Form or similar document ancillary to or referenced by these Terms, shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Leaderamp has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Leaderamp unless Customer has furnished Leaderamp with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by these Terms. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Leaderamp for any Taxes and related costs paid or payable by Leaderamp attributable to Taxes that would have been Customer’s responsibility under this Section 8.6 if invoiced to Customer. Customer shall promptly pay or reimburse Leaderamp for all costs and damages related to any liability incurred by Leaderamp as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section 8.6 shall survive the termination or expiration of these Terms.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
9.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
9.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, THE LEADERAMP SERVICES AND THIRD-PARTY OFFERINGS ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE LEADERAMP SERVICES AND THIRD-PARTY OFFERINGS IS AT ITS OWN RISK. LEADERAMP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
LEADERAMP DOES NOT WARRANT THAT: (A) THE USE OF THE LEADERAMP SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE LEADERAMP SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE USE OF THE LEADERAMP SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (D) THE LEADERAM SERVICES; OR (E) THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE LEADERAMP SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LEADERAMP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS (INCLUDING, WITHOUT LIMITATION, ANY CAREER DECISIONS, PURCHASES OR TRANSACTIONS) MADE BY CUSTOMER AND/OR ITS USERS IN CONNECTION WITH THE USE OF THE LEADERAMP SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS USERS; (B) LEADERAMP AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION, DELAYS OR ERRORS CAUSED BY CUSTOMER`S OR ITS USERS USE OF THE SERVICE, OR ANY PART THEREOF.
10.1 Leaderamp Indemnity.
(a) Indemnity. Leaderamp, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Service infringes or misappropriates any copyright or trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Third-Party Claim. Leaderamp’s obligations under this Section are conditioned upon (i) Leaderamp being promptly notified in writing of any claim under this Section, (ii) Leaderamp having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Leaderamp’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Leaderamp’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Leaderamp’s right to control the defense and settlement.
(b) Mitigation. If any claim which Leaderamp is obligated to defend has occurred, or in Leaderamp’s determination is likely to occur, Leaderamp may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Service, (b) substitute a functionality equivalent, non-infringing replacement for such the Service, (c) modify Service to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Service due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Service in combination with any software, hardware, network or system not supplied by Leaderamp where the alleged infringement relates to such combination, (iii) any modification or alteration of the Service other than by Leaderamp, (iv) Customer’s continued use of the Service after Leaderamp notifies Customer to discontinue use because of an infringement claim, (v) use of Open Source Software; (vi) Customer’s violation of applicable law; (vii) Third Party Offerings; and (viii) Customer System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF LEADERAMP WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF LEADERAMP WITH RESPECT THERETO.
10.2 Customer Indemnity. Customer shall defend Leaderamp and its affiliates, licensors and their respective officers, directors and employees (“Leaderamp Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Leaderamp of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Service other than as permitted under these Terms; or (c) arising from the occurrence of any of the exclusions set forth in Section 10.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Leaderamp Indemnified Parties from any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Leaderamp providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Leaderamp settle any claim without Customer’s prior written approval. Leaderamp may, at its own expense, engage separate counsel to advise Leaderamp regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
11.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of these Terms and any Order Form or Statement of Work. Confidential Information of Leaderamp shall include the Service. Confidential Information also includes all summaries and abstracts of Confidential Information.
11.2 Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under these Terms. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
11.3 Exceptions to Confidential Information. The obligations set forth in Section 11.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
11.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
12. PROPRIETARY RIGHTS.
12.1 Service. As between Leaderamp and Customer, all right, title and interest in the Service and any other Leaderamp materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the LeaderAmp, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Leaderamp or Leaderamp’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Leaderamp all evaluations, ideas, feedback and suggestions made by Customer to Leaderamp regarding the Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
12.2 Customer Data. As between Leaderamp and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into the Service by Customer (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer. Customer hereby grants to Leaderamp a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Leaderamp to provide the Leaderamp Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Customer Data and Other Information as a part of the Aggregated Statistics (as defined in Section 12.3 below). Individual Users may opt-in to the use of their Customer Data for other purposes, including but not limited to research purposes. As between Leaderamp and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer acknowledges that the Service is provided from servers hosted within the United States of America and hereby agrees to the hosting and storage of Customer’s and its Users’ Customer Data within the United States.
12.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Leaderamp may monitor Customer’s use of the Leaderamp Services and use data and information related to such use, Customer Data, and Other Information in an aggregated manner that does not identify Customer or any User, including to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between Leaderamp and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Leaderamp. Customer acknowledges that Leaderamp will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other customers into the Service and Customer agrees that Leaderamp may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
12.4 Leaderamp Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Leaderamp, whether solely or jointly, including without limitation, in connection with Leaderamp’s third parties’ performance of the Leaderamp Services hereunder, including (unless otherwise expressly set forth in an applicable SOW) all Deliverables (“Leaderamp Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Leaderamp. Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Leaderamp Developments is not, by operation of law or otherwise, vested in Leaderamp, Customer hereby assigns and agrees to assign to Leaderamp all right, title and interest in and to such Leaderamp Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
12.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Leaderamp Developments or Intellectual Property Rights therein cannot be assigned by Customer to Leaderamp, Customer hereby grants to Leaderamp an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Leaderamp those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Leaderamp may reasonably request, to perfect ownership of the Feedback and Leaderamp Developments. If Customer is unable or unwilling to execute any such document or take any such action, Leaderamp may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
13. LIMITATION OF LIABILITY.
13.1 No Consequential Damages. NEITHER LEADERAMP NOR ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF LEADERAMP OR ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICE, ANCILLARY SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF. LEADERAMP WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
13.2 Limits on Liability. NEITHER LEADERAMP NOR ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO LEADERAMP UNDER THESE TERMS DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
13.3 Essential Purpose. Customer acknowledges that the terms in this Section 13 (Limitation of Liability) are an essential basis of the bargain described in these Terms and that, were Leaderamp to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
14. TERM AND TERMINATION.
14.1 Term. The term of these Terms commence on the Activation Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Except as otherwise specified in the applicable Order from, Subscription Terms for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Leaderamp has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.
14.2 Termination for Cause. A party may terminate these Terms, any Statement of Work (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree. Upon any termination for cause by Customer, Leaderamp shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Leaderamp for the period prior to the effective date of termination.
14.3 Termination for Convenience. Customer shall have the right to terminate any Subscription Term for convenience on at least sixty (60) days prior written notice to Leaderamp; provided, however, that under no circumstances shall Customer be entitled to any refund of any Fees for such terminated Subscription Term.
14.4 Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Service and the performance of all Coaching Services; (b) all Order Forms shall terminate; and (c) all fees and other amounts owed to Leaderamp shall be immediately due and payable by Customer. Upon Customer’s request made within thirty (30) days after the effective date of applicable termination or expiration, Leaderamp shall make any Customer Data stored on the Service available for download by Customer in the format in which it is stored in the Service. After such 30-day period, Leaderamp shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
14.5 Survival. This Section and Sections 1, 2.3, 3.1, 4, 5, 8.6, 9.2, 10, 11, 12, 13, 14.4, and 15 shall survive any termination or expiration of these Terms.
15.1 Notices. Leaderamp may give notice to Customer by means of a general notice through the Service interface, electronic mail to Customer’s e-mail address on record with Leaderamp, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Leaderamp. Customer may give notice to Leaderamp by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to LeaderAmp,1091 Crystal Springs Drive, Vacaville, CA 95688, Attention: Matt Barney. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
15.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties` relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties` rankings. The seat, or legal place of arbitration shall be Santa Clara County, California. Notwithstanding the foregoing, Leaderamp has the right to pursue equitable relief in any court of competent jurisdiction.
15.3 Publicity. Leaderamp has the right to reference and use Customer’s name and trademarks and disclose the nature of the Leaderamp Services provided hereunder in each case in Leaderamp business development and marketing efforts, including without limitation on Leaderamp’s web site.
15.4 U.S. Government Customers. If Customer is a federal government entity, Leaderamp provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.
15.5 Export. The Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Leaderamp and its licensors make no representation that the Service is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
15.6 Anti-Corruption; OFAC. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Leaderamp in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Leaderamp. Customer represents and warrants to Leaderamp that neither Customer nor any person or entity owning an interest in Customer, nor any Customer personnel are (a) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”), or (b) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.
15.7 Waiver. No term or provision of these Terms shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
15.8 Severability. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
15.9 Assignment. Customer may not assign its rights or delegate its obligations under these Terms, any Order Forms or any SOWs to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Leaderamp, such consent not to be unreasonably withheld. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns. There are no third party beneficiaries to these Terms.
15.10 Relationship of the Parties. Leaderamp is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
15.11 Attorneys’ Fees. In any action to enforce these Terms, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
15.12 Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.
15.13 Entire Agreement. These Terms, including all applicable Order Forms, and Statements of Work, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.