Terms and Conditions
These SellingInnovations, LLC Terms and Conditions ("Terms") govern the license and use of Jolteffect.com by SellingInnovations Deliverables. Additional or alternative provisions apply for certain purchases and are included in any applicable Letter of Agreement a Customer executes to complete its purchase. These Terms, together with any applicable Letter of Agreement, constitute the valid, complete, and binding contract between Customer and SellingInnovations. If there is any conflict between these Terms and a Letter of Agreement, the Letter of Agreement shall prevail.
Definitions
Unless otherwise defined in these Terms or any Letter of Agreement, capitalized terms have the following meanings:
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Here “control” means the power, directly or indirectly, to direct or affirmatively cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” means these Terms, as may be updated and modified from time to time, and any applicable Letter of Agreement executed by Customer and SellingInnovations.
"Benchmarks" mean aggregated data received, collected, analyzed, and maintained by SellingInnovations and its Affiliates to improve its Deliverables. Benchmarks may be derived from public information, assessment responses, survey data and best practices information that SellingInnovations receive from their customers. Benchmarks are always presented in an aggregated and anonymized form that does not identify a particular individual or company.
“Configured Deliverables” means Customer owned deliverables created by SellingInnovations and provided to Customer during the Term of Agreement pursuant to specific individual requirements desired by Customer and set forth in the Letter of Agreement.
"SellingInnovations" means SellingInnovations, LLC, a Delaware limited liability company, and any Affiliate of SellingInnovations designated in the applicable Letter of Agreement with customer.
"SellingInnovations IPR" means all Intellectual Property Rights (i) in and to the SellingInnovations Property or (ii) otherwise owned by or licensed to SellingInnovations or its Affiliates by their respective licensors.
"SellingInnovations Property" means all of the following without limitation created or owned by SellingInnovations, its Affiliates, or its licensors, whether pre-existing or independently created during the Term of Agreement: all materials, websites, software, tools, URLs and links, universal competency frameworks, databases, designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network-design, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works.
“Deliverables” means Programs, Products, Services, Materials, and Configured Deliverables included in a Letter of Agreement.
"Customer" is an entity that purchases a Deliverable from SellingInnovations. In the event the license is extended to such Customer's Affiliates pursuant to the Letter of Agreement, the term "Customer" shall include such Affiliates and the provisions of the Agreement shall also apply to Customer’s Affiliates.
"Customer Property" means any data, information, or other material provided by or on behalf of Customer or users in the course of implementing or using the Deliverables to SellingInnovations; provided, however, Customer Property shall not include any SellingInnovations Property or SellingInnovations IPR.
"Confidential Information" means all information, in whatever form, furnished by one party or its Affiliates ("Disclosing Party") to the other party or its Affiliates, as applicable ("Receiving Party") orally or in writing and identified as confidential or proprietary at the time of disclosure, or that by its nature should reasonably be assumed to be confidential or proprietary, including, but not limited to: business information; financial information; marketing techniques and materials; business plans and strategies; business operation and systems; pricing policies; information concerning employees, customers, or vendors; discoveries; improvements; research; development; know-how; designs; products and services; opportunities; methods and procedures; and equipment, physical materials, and manufacturing processes. SellingInnovations Property and SellingInnovations IPR are expressly considered Confidential Information.
"Customer Research Information" means Customer Property that Customer, in its sole discretion, voluntarily provides to SellingInnovations for the purpose of SellingInnovations' general use of such information in SellingInnovations (e.g. case studies and white papers) that are available through SellingInnovations' Deliverables and are intended for use and consumption by SellingInnovations member companies and clients.
“Feedback” means suggestions, enhancement requests, recommendations, or other feedback by Customer or its users to SellingInnovations regarding any Deliverables.
"Fees" shall mean the fees payable to SellingInnovations for the Deliverables purchased pursuant to the applicable Letter of Agreement.
"Intellectual Property Rights" means all patents (including all reissues, divisions, continuations, and extensions thereof) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design, or other intellectual property rights that are in each case protected under the laws of any governmental authority, whether or not registered, and all applications, renewals and extensions of the same.
"Letter of Agreement" means a written agreement between Customer and SellingInnovations or a SellingInnovations Affiliate describing the Deliverables that Customer is purchasing and may be in the form of a letter of agreement, a subscription agreement, an order form, a statement of work, or a change request, or other similar instrument. These Terms employ "Letter of Agreement" to refer to any of these forms of ordering document.
"Material" means any and all documents, information, virtual learning content, research, training manuals, Templates, technical reports, report formats, research data, selection, assessment and survey content (including survey or test content and scoring protocols), websites, and/or any other materials provided by SellingInnovations as part of a Program, Product or Service. SellingInnovations reserves the right to update, replace, delete or modify Materials from time to time in their discretion. For avoidance of doubt, Configured Deliverables are not Materials.
"Product" means the SellingInnovations’ or SellingInnovations Affiliate’s products included in a Letter of Agreement.
"Program" means a combination of Products and Services provided as a predefined offering under a Letter of Agreement.
“Research Data” means Customer Property disclosed through surveys, assessments, or provided by Customer to SellingInnovations (through software or other data collection activities) for assessment validation, research and benchmarking purposes and product development including creating or updating Benchmarks.
"Services" means the services described in the applicable Letter of Agreement provided by SellingInnovations or one of its Affiliates.
"Subscription Period" means the period of time that commences on the start date and ends on the end date as set forth in a Letter of Agreement for the access to or use of particular Deliverables.
“Templates” means the documents, tools, presentations or templates that are included with certain Programs, Products, or Services and designed to be downloaded and edited by Customer for its particular internal business purposes.
"Term of Agreement" means the Subscription Period, Services term, or other period of time set forth in a Letter of Agreement during which (i) Customer has the right to use the purchased Deliverables or (ii) SellingInnovations is performing Services in accordance with Customer’s purchase.
"Work Day" means a maximum of eight (8) hours between 8:00 am and 5:00 pm local time Monday to Friday excluding public holidays.
1. Purchase and Fees
1.1 Letter of Agreement. Each Letter of Agreement shall be subject to these Terms and will contain: (i) Deliverables purchased by Customer from SellingInnovations; (ii) Fees and payment schedule; (iii) the Term of Agreement, (iv) timelines for Deliverables purchased; and (v) any additional or alternative applicable provisions. Upon Customer’s execution of a Letter of Agreement, Customer’s purchase of SellingInnovations Deliverables shall be deemed to be accepted by SellingInnovations on the earliest of: (a) the date Customer is provided access to the purchased Deliverables in accordance with the Term of Agreement regardless of whether Customer accesses such Deliverables; (b) the first invoice date as set forth in the Letter of Agreement; or (c) the date the Letter of Agreement is countersigned by SellingInnovations.
1.2 Fees. Customer shall pay all Fees as specified in the Letter of Agreement. Fees are quoted and payable in United States dollars. Fees are based on Deliverables purchased and not actual usage. Consulting Service Fees are estimated based on the time spent during a Work Day. Consulting Services performed outside a Work Day shall be considered as overtime and shall be paid at the overtime rate of one and one-half times the consulting Service Fees rate. Consulting Service Fees do not include travel, subsistence, courier, car travel and other expenses and these will be charged to Customer at cost.
1.3 Invoicing. In such circumstances where SellingInnovations delivers an invoice to Customer for the full amount of the Fees, such invoice shall be due and payable by Customer within thirty (30) days of receipt. If any portion of an invoice is disputed, Customer will pay the undisputed amounts, and the parties will reconcile the disputed amount in good faith as soon as possible. Late payments will bear interest at a rate of 1.5% per month, or, if lower, the maximum rate allowed by law.
1.4 Taxes. All fees are exclusive of taxes, levies, and duties imposed by any governmental or taxing authorities. Customer shall pay all sales, use, duties, and other taxes including, without limitation, Value Added Taxes (VAT), excise, customs duties, or Goods and Services Taxes (GST) that are lawfully imposed (and for which no exemption is available), and if SellingInnovationspays any such taxes on behalf of Customer, then Customer shall reimburse SellingInnovations for such payments.SellingInnovations shall pay all taxes that are based on, or measured by, SellingInnovations' (i) gross or net income or gross or net receipts (including any capital gains taxes or minimum taxes), or (ii) capital, doing business, excess profits, net worth, or franchise taxes. If Customer is required to withhold and pay any withholding tax on any amount payable to SellingInnovations under the Letter of Agreement, then Customer will deliver to SellingInnovations the original tax receipt or other proof of payment. Upon request, each party shall provide reasonable support and shall execute and deliver any documents that the other party deems necessary or desirable in connection with any exemption or reduction of, or the contestation of or the defense against, any taxes.
1.5 Set-Off. All payments under the Agreement by Customer will be made without set-off or counterclaim. SellingInnovations invoices can only be disputed within four weeks after receipt.
2. Ownership and Intellectual Property
2.1 Customer Property. SellingInnovations acknowledges and agrees that Customer shall retain exclusive ownership of all rights, title and interest in and to all Customer Property provided to SellingInnovations.
2.2 SellingInnovations Property. Customer acknowledges and agrees that SellingInnovations and its Affiliates or its licensors, as the case may be, shall retain exclusive ownership of all rights, title and interest in and to all SellingInnovations Property and SellingInnovations IPR. Customer acknowledges that its use of SellingInnovations Property and SellingInnovations IPR will not vest in Customer any right, title or interest in or to the SellingInnovations Property or SellingInnovations IPR other than the limited license rights granted under the Agreement and all Intellectual Property Rights arising from such uses will be owned by SellingInnovations and its Affiliates or their respective licensors. In the event that Customer acquires any ownership rights to SellingInnovations Property or SellingInnovations IPR via use or otherwise during the Term of Agreement, Customer agrees to assign, and hereby assigns, such rights to SellingInnovations. Customer’s present assignment of any rights acquired during the Term of Agreement to SellingInnovations shall survive the expiration or termination of the Term of Agreement. At SellingInnovations request, Customer shall execute all documents necessary for SellingInnovations to effect such assignment. The Customer warrants and represents that: it will not at any time (i) challenge (a) SellingInnovations' rights, title and interests in and to the SellingInnovations Property or the SellingInnovations IPR or (b) the validity of any SellingInnovations IPR or (ii) take any action or engage in any inaction which would impair or tend to impair SellingInnovations Property or SellingInnovations IPR.
2.3 Licenses.
2.3.1 Deliverables. Any license applicable to particular Deliverables shall be set forth in a Letter of Agreement. If a license provision is not included in the Letter of Agreement, the following default provision shall apply:
During the Term of Agreement, SellingInnovations grants Customer (or a specified number of users) a non-exclusive, royalty-free, worldwide, revocable, non-transferable, non-sublicensable, and non-assignable license to access, use, reproduce and distribute the Programs, Products, Services, or Materials solely for Customer's internal business purposes.
The license can be revoked by SellingInnovations by providing thirty (30) days notice to Customer that the license is being revoked or immediately for non-payment of Fees or breach of the Agreement by Customer.
Neither Customer nor any individual user may sublicense, sell, transfer, assign to, display, or otherwise make available (by sharing passwords or by any other means) the Deliverables to any third party (including (i) a Customer service provider, independent contractor, consultant, or subcontractor; or any (ii) other Customer divisions or Customer Affiliates to which the license has not been extended under the Letter of Agreement) without SellingInnovations' prior written permission, and any attempted sublicense, sale, transfer, or assignment shall be void.
2.3.2 Templates. Templates are SellingInnovations Property. Customer may continue to use the resulting document from its download and editing of the Template after termination or expiration of the Term of Agreement. SellingInnovations grants to Customer a perpetual, non-exclusive, royalty-free, worldwide, non-transferable, non-sublicensable, and non-assignable license to use any Templates downloaded and edited during the Term of Agreement for Customer's internal business purposes.
2.4 Configured Deliverables. Configured Deliverables are for Customer's sole use and are not for use by any other SellingInnovations client. Upon full and final payment of any Fees, Customer will own Configured Deliverables subject to the following: (i) SellingInnovations shall retain exclusive ownership of all rights, title and interest in and to all SellingInnovations Property and SellingInnovations IPR incorporated in the Configured Deliverables, and (ii) the Configured Deliverables shall be used for Customer's internal business use only and may not be shared with any third party without SellingInnovations' prior written consent. SellingInnovations grants to Customer a perpetual, non-exclusive, royalty-free, worldwide, non-transferable, non-sublicensable, and non-assignable license to use the SellingInnovations Property and SellingInnovations IPR incorporated into any Configured Deliverables to the extent necessary to allow the Customer to enjoy the benefit of the Configured Deliverables; provided, however, that Customer acknowledges that its access to any online systems on which Configured Deliverables are delivered is limited to the Term of Agreement.
2.5 Customer Compliance, Information, Data, and Feedback
2.5.1 User Compliance. Customer is responsible for protecting against any unauthorized access to or use of, and compliance of those individuals allowed to access or use, the Deliverables. Customer shall notify SellingInnovations promptly of any unauthorized access to or use of the Deliverables. Customer shall ensure that it and those individuals allowed to access or use the Deliverables refrain from using the same in a manner that is libelous, defamatory, obscene, infringing or illegal, or otherwise abusing the Deliverables in any manner.
2.5.2 License to Customer Research Information. If Customer voluntarily discloses Customer Research Information to SellingInnovations, Customer grants SellingInnovations and its Affiliates a permanent and irrevocable, perpetual, worldwide, freely assignable, sublicensable, and transferable, royalty-free license to use Customer Research Information. Such license includes, without limitation, the right to display, perform, sublicense, distribute, prepare derivative works based upon, copy, and use such Customer Research Information, including any portions, subsets and derivatives thereof. This license applies to the distribution of Customer Research Information (to the extent incorporated into SellingInnovations' Deliverables) in any form, medium, or technology now known or later developed. SellingInnovations will own any derivative works prepared or created by SellingInnovations or its Affiliates, as applicable.
2.5.3 Feedback. Customer acknowledges and agrees that Feedback may be incorporated by SellingInnovations into its Deliverables, and shall be considered SellingInnovations Property.
Any Intellectual Property Rights in the Feedback are SellingInnovations IPR. In the event that Customer acquires or has any ownership rights to any Intellectual Property Rights in the Feedback, Customer agrees to assign, and hereby assigns, such rights to SellingInnovations. Customer’s present assignment of any such rights acquired during the Term of Agreement to SellingInnovations shall survive the termination or expiration of the Term of Agreement. At SellingInnovations request, Customer shall execute all documents necessary for SellingInnovations to effect such assignment.
If under applicable law, the Feedback or Intellectual Property Rights in the Feedback, in whole or in part, are deemed to not be SellingInnovations Property or SellingInnovations IPR, Customer grants SellingInnovations and its Affiliates a permanent and irrevocable, perpetual, worldwide, freely assignable, sublicensable, and transferable, royalty-free license to use any such Feedback or Intellectual Property Rights in the Feedback.
2.5.4 Research Data and Benchmarking. Customer authorizes SellingInnovations and its Affiliates to use Research Data and Benchmarks derived from such Research Data, provided SellingInnovations will (i) only use, aggregate, and present the Research Data or Benchmarks in an anonymous form and (ii) not include (directly or by inference) any information identifying Customer or any identifiable individual as the source of such data in the Research Data or Benchmarks. SellingInnovations and its Affiliates are bound by ethical guidelines and data protection laws in the use of all data. Access to any Research Data will be restricted to only those individuals directly involved in research supporting SellingInnovations’ business.
2.5.5 Right to Audit. During the Term of Agreement and for a period of one (1) year following the termination or expiration of the Term of Agreement, SellingInnovations reserves the right to audit Customer upon reasonable written notice to verify compliance with the Agreement. Customer shall maintain and make available to SellingInnovations accurate records to permit SellingInnovations or an independent auditor retained by SellingInnovations to verify Customer’s compliance with the terms and requirements of the Agreement.
3. Data Protection
3.1 Both parties shall at all times comply with all applicable laws and regulations in relation to the collection, processing, use, and storage of personal data.
3.2 Customer is solely responsible for ensuring that any personal data included in the Customer Property is collected, processed and disclosed fairly and lawfully by Customer and is in compliance with any applicable privacy laws and regulations, including but not limited to the obtaining of any consents or licenses required from those whose personal data is included in the Customer Property. Customer acknowledges and agrees by providing the Customer Property to SellingInnovations, that (a) Customer has the legal right and authority to access, use and disclose to SellingInnovations the Customer Property and (b) Customer authorizes SellingInnovations to access, process, and use the Customer Property as necessary to perform and fulfill its obligations under the Agreement, including providing the Deliverables. Customer is solely responsible for the encryption of any Customer Property.
3.3 Customer acknowledges and agrees that SellingInnovations may process Customer Property in accordance with SellingInnovations Privacy Policy, as may be updated and modified from time to time.
3.4 SellingInnovations maintains security policies and undertakes industry standard measures as reasonably necessary to safeguard and protect the Customer Property from unauthorized access, loss, destruction or use, SellingInnovations may update its security policies from time to time.
3.5 Customer acknowledges and agrees that SellingInnovations may access, preserve, or share any of the Customer Property when we believe in good faith that such sharing is reasonably necessary to investigate, prevent, or take action regarding possible illegal activities or to comply with legal process (e.g. a subpoena or other legal process). Customer acknowledges and agrees that SellingInnovations may share any of the Customer Property when we believe in good faith that such sharing is reasonably necessary in situations involving potential threats to the physical safety of any person, to respond to the claims of violation of the rights of third parties, or to protect the rights, property and safety of SellingInnovations or others. This may involve the sharing of Customer Property with law enforcement, government agencies, courts, or other organizations.
4. Indemnification
4.1 Customer and SellingInnovations (each, the "Indemnifying Party") agree to indemnify and defend the other party, its officers, directors, and employees (each, an "Indemnified Party"), from and against any and all loss, damage, and expense, including reasonable legal fees and expenses ("Losses"), incurred by the Indemnified Party as a result of any third party claim, demand, action or proceeding ("Claim"), directly and proximately arising from or by reason of any actual or alleged infringement of any Intellectual Property Rights arising out of any SellingInnovations Property or Customer Property supplied to the Indemnified Party by the Indemnifying Party. This indemnification obligation is provisional on the Indemnified Party: (i) providing the Indemnifying Party prompt written notice of any Claim, or upon reasonable suspicion of a Claim, (ii) cooperating with the Indemnifying Party’s reasonable request for information or other assistance, (iii) granting control of the defense and settlement of the Claim to the Indemnifying Party, and (iv) not settling or making any offer to settle the Claim or make any admission of guilt or fault without first obtaining the Indemnifying Party’s prior written approval.
4.2 To the extent that SellingInnovations or its Affiliate is the Indemnifying Party under Section 4.1, such provision shall not apply to (i) Customer's misuse of SellingInnovations Property provided by SellingInnovations, (ii) Customer's use of SellingInnovations Property in combination with any product or information not provided by SellingInnovations, or (iii) Customer's utilization of SellingInnovations Property in a manner not contemplated by these Terms or any Letter of Agreement, in each case, whether or not with SellingInnovations' consent. The provisions of this section shall also apply to Customer’s Affiliates.
4.3 In the event that any SellingInnovations Property or Customer Property, as applicable, become or are, in the Indemnifying Party’s opinion, likely to become the subject of an infringement claim, or use of SellingInnovations Property or Customer Property is enjoined, or in the Indemnifying Party’s opinion, likely to be enjoined, then, at the Indemnifying party’s election, the Indemnified Party will allow the Indemnifying Party to either obtain for the Indemnified Party the right to continue using the affected material, replace it, modify it so it becomes non-infringing, or, in the case of SellingInnovations as the Indemnifying Party (and at SellingInnovations’ sole discretion), terminate the applicable Letter of Agreement by written notice to Customer, require Customer to cease use of SellingInnovations Property, and refund to Customer the amount(s) paid to SellingInnovations under the applicable Letter of Agreement prorated for the amount of time left in the Term of Agreement for which the applicable SellingInnovations Property is no longer available.
4.4 This section shall constitute a party’s sole and exclusive remedy at law in connection with any Claim brought against such party by a third party alleging actual or alleged infringement of any Intellectual Property Rights.
4.5 Customer shall indemnify and defend SellingInnovations, and its Affiliates, and each of their respective directors, officers, and employees (each a “SellingInnovations Indemnified Party”) from and against any Losses incurred by the SellingInnovations Indemnified Party as a result of any Claim (other than Claims for infringement of Intellectual Property Rights which are addressed in Section 4.1) that arises out of or relates to any Customer Property provided by Customer to SellingInnovations.
5. Limitations of Liability
5.1 Neither party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits (whether actual or anticipated), (ii) loss of revenue, (iii) loss of contracts, (iv) loss of anticipated savings, (v) loss of business, (vi) loss of opportunity, (vii) loss of goodwill, or (viii) any indirect, special or consequential loss or damage. Notwithstanding the foregoing, nothing shall limit SellingInnovations’ or its Affiliates’ or their respective licensors’ rights to damages arising from any infringement or misappropriation of SellingInnovations IPR regardless of whether such infringement or misappropriation arises in connection with these Terms or any Letter of Agreement.
5.2 SellingInnovations’ and its Affiliates’ total aggregate liability arising out of or in connection with the performance or contemplated performance under the applicable Letter of Agreement (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Customer to SellingInnovations under such Letter of Agreement within the twelve (12) month period immediately before the date of the event giving rise to Customer’s claim.
5.3 Nothing contained in these Terms or any Letter of Agreement shall exclude or limit either party’s liability for (i) death or personal injury caused by its or its Affiliate’s negligence, (ii) fraud or fraudulent misrepresentation, or (iii) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability. In all such cases, a party’s liability shall be limited to the greatest extent permitted by applicable law.
5.4 SellingInnovations is not liable for its failure to perform any of its obligations under the Agreement during any period in which performance is delayed by Customer or circumstances beyond SellingInnovations reasonable control. Access to Deliverables delivered via online systems is dependent on third parties, such as internet service providers. SellingInnovations will have no liability to Customer for any losses Customer suffers resulting directly or indirectly from: (i) failures of performance on the part of SellingInnovations’ or Customer’s internet service provider; (ii) failure of SellingInnovations’ or Customer’s equipment; (iii) reasons related to SellingInnovations’ provision of system upgrades or maintenance; (iv) any security breach of SellingInnovations’ system unless such breach is shown to be the result of SellingInnovations’ negligence; or (v) inability to access the SellingInnovations online system due exclusively to SellingInnovations’ software or hardware being down for any reasonable period not exceeding (a) seventy-two (72) consecutive hours or (b) an aggregate of more than one (1) week in any calendar month.
6. Confidential Information
6.1 The Receiving Party agrees not to use and/or disclose Confidential Information received from the Disclosing Party except as allowed under the Agreement.
6.2 The Receiving Party will not disclose Confidential Information to any third party, other than to its directors, officers, and employees under a duty of confidentiality without the Disclosing Party’s prior written consent. The Receiving Party shall maintain the Confidential Information of the Disclosing Party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care. SellingInnovations shall be allowed to disclose Confidential Information to its Affiliates, consultants, vendors or subcontractors who are necessary to provide Deliverables to Customer, provided that any such Affiliates, consultants, vendors or subcontractors are bound by confidentiality obligations at least as restrictive as those contained in these Terms.
6.3 The confidentiality obligations of each party shall continue in force and survive the termination or expiration of the Term of Agreement for a period of three (3) years following termination or expiration of the Term of Agreement. The confidentiality obligations with respect to any Confidential Information subject to trade secret protection will continue indefinitely.
6.4 The Disclosing Party grants no license under any copyright, patent, trademark or trade secret by the disclosure of the Confidential Information. The parties understand and acknowledge that any and all Confidential Information is being provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.
6.5 Confidential Information shall not include any information that (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by the Disclosing Party to the Receiving Party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by the Disclosing Party to the Receiving Party through no wrongful action or inaction of the Receiving Party; (iii) is in the rightful possession of the Receiving Party without confidentiality obligations at the time of disclosure the Disclosing Party to the Receiving Party as shown by the Receiving Party’s then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by the Receiving Party from a third party without an accompanying duty of confidentiality without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
6.5 If The Receiving Party becomes legally compelled to disclose any Confidential Information, The Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy. The Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
6.6 Customer and SellingInnovations agree that neither party will breach any promises of confidentiality made to any survey or assessment candidate or participant. Customer shall not ask or induce others to ask SellingInnovations to provide any data, including survey or assessment responses, to Customer or any third parties in violation of confidentiality notices presented to candidates or participants.
7. Termination
7.1 General. With the exception of termination for Cause as defined in section 7.2 below, Customer may not terminate the Letter of Agreement and any Fees paid, due, or payable by Customer are not refundable or cancellable. SellingInnovations will not provide any refunds or credits for partially used Subscription Periods. SellingInnovations can terminate the Letter of Agreement by providing Customer with at least thirty (30) days prior written notice of termination.
7.2 Termination for Cause. Either party may terminate a Letter of Agreement for “Cause” if the other party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy or (b) materially breaches any provision of the Agreement between the parties (which, in the case of Customer, shall include failure to pay any undisputed Fees) and (i) either the breach cannot be cured or, (ii) if the breach is capable of being cured, it is not cured by the breaching party within thirty (30) days after the breaching party’s receipt of written notice of such breach by the non-breaching party (stating the specific nature of the breach). Termination for Cause shall not relieve Customer of the obligation to pay any undisputed Fees accrued or payable to SellingInnovations in connection with the Letter of Agreement prior to the effective date of termination. Such termination will be without prejudice to any rights or remedies of either party which may have accrued up to the date of termination.
7.3 Effect of Termination. Upon termination or expiration of the applicable Term of Agreement Customer has with SellingInnovations for any Deliverables: (i) all licenses granted by SellingInnovations pursuant to the Letter of Agreement or these Terms shall immediately terminate and (ii) Customer shall immediately cease use of the Services, Products, Programs and Materials, in each case for such Programs, Products, Services, and Materials, or that portion thereof, for which such Term of Agreement has been terminated or expired. SellingInnovations reserves the right to charge Customer for continued use of its Programs, Products, Services or Materials after the expiration or termination of the Customer’s Agreement with SellingInnovations.
8. Deliverables and Customer Obligations
8.1 SellingInnovations reserves the right to modify, substitute, or discontinue Deliverables with reasonable notice. SellingInnovations will have no liability to Customer for any losses Customer suffers resulting directly or indirectly from any modifications, substitutions, or discontinued Deliverables by SellingInnovations. All Deliverables are deemed accepted by Customer upon delivery or performance by SellingInnovations.
8.2 Dates for Deliverables performance agreed to in a Letter of Agreement are conditional upon Customer’s timely completion of its obligations, including but not limited to, provision of necessary information and approval of documentation. Customer or its agents will provide reasonable assistance to SellingInnovations that is required to facilitate delivery of Deliverables to Customer. Delays caused by Customer’s failure to meet its obligations in a timely manner will be at Customer’s cost and expense, and subsequent delivery or performance dates will be adjusted accordingly proportionate to the delay. Time shall not be of the essence in SellingInnovations’ delivery or performance under the Letter of Agreement. SellingInnovations will not be liable in the event that SellingInnovations is not able to deliver or complete the Deliverables due to Customer’s non-performance. After written notice to Customer of any Customer delays that prevent SellingInnovations from performing its obligations and after a reasonable time to cure of thirty (30) days from receipt of written notice, SellingInnovations will be deemed to have delivered and completed the Deliverables in full satisfaction of its obligations.
8.3 If Customer fails to meet its obligations or timelines as agreed in a Letter of Agreement or wishes to cancel or postpone the agreed dates for Deliverable delivery, Customer will be responsible for any costs incurred by SellingInnovations due to such delay, cancellation or postponement. The parties may enter a change request to modify or amend the Letter of Agreement and agree on any additional charges.
9. Marketing
Customer permits SellingInnovations and its Affiliates, as applicable, to use Customer’s name and logo for their internal and external customer lists and other marketing materials. In addition, if Customer discloses Customer Property to SellingInnovations for specific inclusion in materials or for the joint development of a case study or other research, SellingInnovations may attribute such information with Customer’s name and logo. SellingInnovations may use Customer’s plain text name as required in any public reporting or regulatory documents.
10. WARRANTIES
10.1 SellingInnovations Warranties. SellingInnovations represents and warrants that its Deliverables will materially conform to the specifications describing such Deliverables and that it will perform the Deliverables in good faith and in a professional manner. During the Subscription Period, if Customer reasonably demonstrates that there is a defect in the materials or workmanship of the Deliverables or the Deliverables have not been performed with reasonable care and skill in accordance with good industry practice, SellingInnovations will at its sole discretion: (a) repair or make good such defect at no charge to Customer; (b) replace or re-perform such Deliverables; or (c) issue a credit to Customer for a pro-rata portion of the fees for such affected Deliverables as appropriate.
10.2 Customer Warranties. Customer represents and warrants that it: (a) owns or has the right to provide to SellingInnovations all Customer Property; (b) will not copy, reproduce, modify or adapt, translate, disassemble or, reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Deliverables in any form or media or by any means, except as permitted under the Agreement; (c) will not cause confusion, deception or false associations with programs, products and/or services that are not Deliverables including without limitation preparing materials that are identical with, or confusingly similar to SellingInnovations Property; and (d) will use the Deliverables in compliance with all relevant laws, procedures or applicable guidelines.
10.3 DISCLAIMER OF WARRANTIES. SELLINGINNOVATIONS AND EACH OF ITS AFFILIATES PROVIDES THE DELIVERABLES "AS IS" AND DISCLAIMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES FOR DELIVERABLES PROVIDED BY SELLINGINNOVATIONS OR ANY OF ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLINGINNOVATIONS AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THAT CUSTOMER WILL REALIZE ANY RESULTS BY VIRTUE OF THE USE OF THE PROVIDED DELIVERABLES. THIS DISCLAIMER IS INTEGRAL TO ESTABLISHING PRICING AND CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. WITH RESPECT TO ANY SELLINGINNOVATIONS ONLINE SERVICES, SELLINGINNOVATIONS DOES NOT WARRANT OR GUARANTEE CUSTOMER’S USE OF ANY SELLINGINNOVATIONS ONLINE SERVICES WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION, TECHNICAL INACCURACIES, VIRUSES OR OTHER HARMFUL CODE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, SELLINGINNOVATIONS SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY OR ARISING AS A RESULT OF RELIANCE BY CUSTOMER UPON THE DELIVERABLES AND INFORMATION PROVIDED THROUGH THE ONLINE SERVICES.
11. General
11.1 Compliance with Laws. Each party will comply with all applicable laws of the countries where it operates, including all securities, anti-corruption, and anti-bribery laws, and with the US Foreign Corrupt Practices Act and the UK Bribery Act. Any breach of this section is a material breach of the Agreement for which no cure period shall apply.
11.2 Trade Sanctions. SellingInnovations’ Deliverables are subject to US sanctions laws and may not be sold or licensed to any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury ("Restricted Party") or in US sanctioned countries (currently Cuba, Iran, North Korea, Sudan, and Syria) (The most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Customer agrees not to use, transfer, or provide access to the Deliverables (i) to any Restricted Party or (ii) in (or for the benefit of individuals or entities from) such US sanctioned countries. Customer confirms that it is not directly or indirectly owned by, controlled by, owning or controlling or named as a Restricted Party. SellingInnovations and its Affiliates may not do business with a Restricted Party under US law (The most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx and http://www.bis.doc.gov/index.php/the-denied-persons-list). Any breach of this section is a material breach of the Agreement for which no cure period shall apply.
11.3 Governing Law. The Agreement will be governed and construed in accordance with the laws of the State of Delaware, excluding its choice of law principles, and the parties agree to submit to jurisdiction of courts located in the State of Delaware to resolve all disputes.
11.4 Equitable Relief Each party agrees that a breach by such party of the obligations in the Agreement, may result in irreparable harm to the other party for which monetary damages would be an inadequate remedy. Consequently, in the event of a breach, or threatened breach, of any such obligations in the Agreement, the non-breaching party shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief (including injunctive relief and specific performance) in addition to any and all other rights and remedies that may be available to it in respect of such breach.
11.5 Third Party Beneficiaries. The Agreement shall not confer any rights or remedies upon any third party, except SellingInnovations, LLC shall be an express third party beneficiary of these Terms and any Letter of Agreement to which any of its Affiliate is a party, with full power to enforce such Affiliate’s rights thereunder. Nothing in these Terms will create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
11.6 Force Majeure. Neither party will have any liability to the other if the affected party does not fulfill its obligations to the other due to an event outside the affected party’s reasonable control.
11.7 Notice. Notice under the Agreement will be in writing and delivered by email with copy by registered post or other carrier providing a receipt to the address and email address of SellingInnovations or the Customer stated in the Letter of Agreement.
11.8 Severability/Waiver. Any provision of the Agreement held to be invalid under the applicable law, will not affect the validity of the remaining terms of the Agreement. Failure to enforce the Agreement does not waive a party’s right under the Agreement.
11.9 Entire Agreement. The Agreement sets out the entire agreement between the parties and overrides any prior correspondence or representations, and all other terms and conditions, including without limitation any other terms contained within a purchase order or any document supplied by Customer to SellingInnovations. The parties acknowledge that the Agreement has not been entered into in part or whole in reliance on any warranty, statement, promise or representation by the other party, except as set out in the Agreement.
11.10 Successors and Assigns. The Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. Customer cannot assign or transfer any of its rights or obligations in the Agreement to any person or entity without the prior written consent of SellingInnovations.
11.11 Headings. The headings in the Agreement are for reference only and are not intended to form any part of the operative portion of the Agreement, and they shall not be employed in the interpretation or application of the Agreement.
11.12. Hyperlinks. The Deliverables may contain hyperlinks to websites controlled by third parties other than SellingInnovations. SellingInnovations is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by third party websites regarding terms and conditions, data privacy, and other topics before using the websites.
11.13 Updates. SellingInnovations reserves the right, at its sole discretion, to update, change or replace any part of these Terms. The most current version of the Terms will be posted on SellingInnovations website and it is Customer’s responsibility to check the website periodically for changes. If the changes include material changes that affect Customers rights or obligations, we will notify you of the changes by reasonable means, which could include notification via email. Customers continued use of the Deliverables following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Deliverables.
11.14 Contact. If you have any questions or concerns about these Terms of the Agreement please contact us at [email protected].
