“Agreement” or “MSA” means this Master Services Agreement, Ordering Documents(s), Statement(s) of Work, Exhibits, and such other documents, attachments and exhibits that the parties’ authorized representatives mutually agree to in writing.
“Ordering Document” means the document(s), regardless of actual name, executed by the parties from time to time, which incorporates by reference the terms of this Agreement and describes order-specific information such as description of Subscription Services and/or Professional Services ordered, Subscription Metrics, fees, and other business terms.
“Statement of Work” or “SOW” means the document(s) executed by the parties from time to time, which incorporates by reference the terms of this Agreement and is used in lieu of an Ordering Document to describe a set of work, timeline, and cost estimate for Professional Services.
“Company” means Relias Learning LLC.
“Client” means the business entity named on the Ordering Document and receiving Subscription Services under this Agreement.
“LMS” means Company’s proprietary learning management system and other software access provided in connection with Subscription Services, including the Documentation, modifications, enhancements and new versions thereof.
“Content” means materials provided or posted by Company in connection with the Subscription Services, including training courses, tests, assessments, surveys, text, images, graphics, audio and sound recordings, information contained in courses, tests, assessments and other information provided to Users through the Training Center for their training and development and competency assessment, and videos and modifications, enhancements, or new versions thereof.
“Subscription Services” means collectively the LMS Software and any purchased Content accessed through the Site, and the Training Centers, Content, training materials and other collaterals provided by Client to enhance the use of the Training Center by Client and Client data generated by use of the Training Center.
“Site” means the web interface at a URL designated by Company.
“Professional Services” means consulting, implementation, training or other professional services to be performed by the Company described in the attached Implementation Level document, or in one or more additional Ordering Documents mutually agreed to by the parties in writing.
“Project Manager” means the implementation consultant assigned by Company to manage the creation and implementation of the Subscription Services for Client.
“Users” means those persons who (a) have been authorized by Client to access and use the Subscription Services for training and education purposes; (b) have complied with any registration requirements reasonably required by Company and have been issued a personal and unique User ID and Password to access and use the Subscription Services. Only current employees and independent contractors of Client or a Client Organization are eligible to be “Users”.
“Subscription Metrics” means each of the per-unit metrics specified in the Ordering Documents to describe the scope of Client’s right to use each of the Subscription Services, such as the maximum number of Users, restricted Users, Content type, and the like.
“Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, User interfaces and screen designs, general purpose consulting and software tools, utilities and routines, logic, coherence and methods of operation of systems, training methodology and materials, which Company has created, acquired or otherwise has rights in, and may, in connection with the performance of Subscription Services or Professional Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
“Client Organization” means an organization that has a corporate relationship, or is a member of, Client. The attached Exhibit A lists current Client Organizations that will be Sub-Portals to this Agreement. The addition of new Sub-Portals shall require i) written notice to Company from Client, ii) approval by Company (which shall not be unreasonably withheld), and iii) the execution of an amendment to this Agreement.”
“Administrative Training Site” means the Training Center that is designated for administrative functions related to a group of Sub-Portals in an Enterprise System.
“Relias Connect” means the website provided by Company where Client’s Liaison and other Client supervisory employees may access Training Center documentation, Company blogs, a calendar of web-based trainings provided by Company and may participate in user forums.
“Client’s Enterprise System” means a specific configuration of the Services that provides for an Administrative Training Site linked to additional Training Sites known as Sub-Portals.
“Company Course Library” means a specific grouping of online courses provided by Company under the License Fee for use by Client in the Training Center.
“Reports” mean reports issued to Client through the Training Center to assist Client in tracking and managing the training and development of its staff.
“Sub-Portals” means a Training Center that is included in an Enterprise System that has a direct relationship with other sub-portals and the Administrative Training Site.
“Sites Administrator” means the Training Center Administrator in the Administrative Site. The level of access for the Site Administrator will be determined during implementation.
“Training Center” means Company’s online learning system, including Sub-Portal and Administrative Training Sites, consisting of learner and administrative functionality, and associated software and websites, including Company Connect, Reports, Company Content, guides and system documentation.
“Training Center Administrator” means a User who has been authorized by Client or Client’s Liaison to have access to all administrative functionality within the Training Center.”
2.1 Grant of Use. Subject to the terms of the Agreement, Company grants to Client the right to access and use the LMS, to access and utilize the Services provided through the Training Center, and, if purchased, all Content described in the Ordering Document, solely for its internal business purposes and solely in connection with the personal training and education of Users. Each User shall use Content for his/her personal education and training purposes only.
2.2 Authorized Users. Client shall provide Company with the required demographic data for all Users in the specified electronic format provided by Company to complete the initial registration process. Periodic additions of Users, within the Subscription Metrics, may be done manually or using the specified electronic format to bulk upload Users into the LMS. Client agrees not to activate and deactivate Users repeatedly as a method of keeping the number of Users within range of the Subscription Metrics stated in the Ordering Document. Company will routinely monitor the system for patterns of activation/deactivation that are outside the range of what would be expected with normal use. Acceptable 2.3 Use. Client and all Users shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Client agrees and shall ensure that Users agree not to post or upload any content or data which (i) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (ii) contains computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iii) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (iv) otherwise violates any applicable law. Client further agrees and shall ensure that Users agree not to interfere or disrupt networks connected to the Subscription Services, not to interfere with another entity's use of similar services and to comply with all regulations, policies and procedures of networks connected to the Subscription Services. Company may remove any violating content posted on the Subscription Services or transmitted through the Subscription Services without notice. Company may suspend or terminate any User’s access to the Subscription Services in the event that Company reasonably determines that such User has violated the terms and conditions of this Agreement.
2.4 Restrictions. Client shall not itself, or through any affiliate, employee, contractor, agent or other third party (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Subscription Services, the Site or access thereto; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the LMS, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Site or the Content to any User other than those who have authorization to access; (iv) write or develop any derivative works based upon the LMS; or modify, adapt, translate or otherwise make any changes to the LMS or any part thereof; (vi) use the Subscription Services to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without Company’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Subscription Services; or (viii) remove from any Content or other materials owned by Company identification, patent, copyright, trademark or other notices. Proprietary notices, including without limitation patents, copyrights and trademarks notices, as well as disclaimer notices, must be reproduced on any such authorized copies.
3.1 Environment. The Subscription Services will be hosted on a server that is maintained by Company or its designated third party. User access to the Subscription Services is provided through the Site. Client is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access the Site, including but not limited to Internet access and telecommunications infrastructure network with adequate bandwidth.
3.2 Availability. Company shall use commercially reasonable efforts to make the Subscription Services available 24x7, except for scheduled downtime events where notice is provided to Client, emergency downtime events, or Internet service provider failures or delays. Company will use commercially reasonable efforts to perform scheduled downtime events outside of normal business hours. Client acknowledges that the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications; Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.
3.3 Content. Content purchased, if any, shall be provided by Company in the LMS. Client is responsible for selecting which Content will be available to authorized Users. Company continuously reviews and updates Content based on an ongoing needs analysis. Company reserves the right to add, revise, or withdraw from its Content any item or part of an item in its sole discretion.
3.4 Liason. Client shall designate a primary contact who shall function as the liaison to Company and who shall be trained by Company so that the administrator shall be able to train and support Users on the use of the Subscription Services (“Liaison”). The Liaison shall be the primary interface with Company on all issues related to the Subscription Services. The Liaison shall also be designated as the Training Center Administrator and given the ability to authorize additional Users to have Training Center Administrator privileges.
3.5 Passwords. Client is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized User. Client is entirely responsible for any and all activities that occur under its account. Client shall immediately notify Company of any unauthorized use or any other breach of security known to Client. Company shall have no liability for any loss or damage arising from Client’s failure to comply with these requirements.
3.6 Client Data. Client shall be solely responsible for the accuracy, quality, integrity and legality of data, Modified Content, and Proprietary Content uploaded in the LMS by Client. Client shall own, subject to the provisions of section 7, or shall obtain all proprietary rights necessary, including copyrights, patents, and trade secrets, in and to any content or data it develops or uploads for use in the LMS. Client authorizes Company and the data center to serve as the host and repository for the data Client enters into the LMS.
3.7 Changes. Company reserves the right to add and/or substitute functionally equivalent products in the event of product unavailability, end-of-life, or changes to software requirements. Company regularly updates the Subscription Services, meaning that such Subscription Services are continually evolving. Some of these changes will occur automatically, while others may require Client to schedule and implement the changes.
4.1 Statements of Work; Change Orders. Company will perform Professional Services according to the Ordering Document as the parties may agree to in writing from time to time. Either party may propose a change order to add to, reduce, or change the Professional Services ordered. Each change order shall specify the change(s) to the Professional Services, the time to perform the Professional Services, and the fees owed to Company, due to the change. Once executed by both parties, a change order shall become a part of the Ordering Documents.
4.2 Cooperation. Client shall provide Company with good-faith cooperation and access to such information, facilities, personnel and equipment as Company may reasonably require in order to provide the Professional Services. Client acknowledges that Company’s performance is dependent upon the timely and effective completion of Client’s responsibilities hereunder and Client’s timely decisions and approvals in connection with the Professional Services. Company shall be entitled to rely on all such decisions and approvals.
5.1 Fees and Payment Terms; Taxes. Fees and payment terms are specified in the applicable Ordering Document. All payments made hereunder shall be in US Dollars. Company may, after the first twelve (12) months of the initial term, and not more than once in a twelve (12) month period, modify the fees for Subscription Services upon sixty (60) days written notice. Unless otherwise specified in the Ordering Document, payment of all fees is due thirty (30) days after the invoice date. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Failure to make timely payments shall be a material breach of the Agreement and Company will be entitled to suspend any or all services hereunder upon thirty(30) days written notice to Client and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Company. Unless expressly provided otherwise, prices do not include taxes. Client agrees to pay any federal, state or local sales, use, personal property, excise taxes or other taxes arising out of this Agreement.
5.2 Subscription Metrics. Client understands and agrees that (i) all fees are based on the Subscription Metrics purchased and that (ii) unless expressly stated otherwise in the Ordering Document, the quantity(ies) of Subscription Metrics provided in the initial Ordering Document represent minimum amounts that Client has committed to for the Subscription Service Term (as defined in section 10.2). Additional Subscription Metrics must be purchased in units with a minimum of ten (10) in the event actual use exceeds the licensed quantity, at Company’s then- current fees. Additional Subscription Metrics, if any, are prorated for the remainder of the then-current Subscription Services Term of the applicable Ordering Document. There shall be no fee adjustments or refunds for any decreases in usage during Subscription Services Term.
5.3 Professional Services. Additional Professional Services may be provided on a time and materials (“T&M”) basis at the Company T&M rates in effect at the time the Professional Services are performed or on a fixed fee basis, as indicated in a duly executed Ordering Document. On a T&M engagement, if an estimated total amount is stated in the Ordering Document, that amount is solely a good-faith estimate for Client’s budgeting and Company’s resource scheduling purposes and not a guarantee that the work will be completed for that amount. On a fixed fee engagement, Professional Services purchased must be used within, and prices quoted are valid for, the time period specified in the Ordering Document. Hours that are not used or have expired are non-refundable.
5.4 No Contingencies. Client agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Company regarding future functionality or features.
6.1 Confidential Information. Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the other party. “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary” or which should be reasonably understood by each party to be confidential or proprietary, including, but not limited to, the terms and conditions (but not the existence) of this Agreement, all trade secrets, Intellectual Property as well as results of testing and benchmarking of the Subscription Services. Each party will protect the other party’s Confidential Information from unauthorized dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Company may use, for purposes outside of this Agreement, anonymous, de-identified data; however, Company agrees not to use or disclose this information to the extent prohibited by applicable law. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was lawfully in the receiving party's possession before receipt from the disclosing party without a duty of confidentiality; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one party without reference to any Confidential Information of the other.
6.2 Compelled Disclosure. A party (“Disclosing Party”) may disclose Confidential Information of the other party if it is compelled by law to do so, provided the Disclosing Party gives the other party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6.3 The parties acknowledge that, under the terms of this Agreement, Company does not collect or possess Protected Health Information, as defined in 45 C.F.R. § 160.103, and that Company shall not be required to execute a Business Associate agreement or similar agreement. Client warrants and represents that it shall not upload in any of the Subscription Services or otherwise provide Company or its suppliers access to any such Protected Health Information.
7.1 All rights not expressly granted in this Agreement are reserved by Company and its licensors.
7.2 Subscription Services. Company and its licensors shall retain sole and exclusive ownership of, and all rights, title, and interest in, Subscription Services and the Site, including without limitation (a) Intellectual Property embodied or associated therein, and (b) all derivative works (subject to the provisions of section 7.5) and copies thereof.
7.3 Professional Services. Company shall retain all rights, title and interest in and to any and all Intellectual Property used or in any manner employed by Company in the provision of Professional Services.
7.4 Enforcement. Client shall (i) ensure that all Users of Subscription Services comply with the terms and conditions of this Agreement, (ii) promptly notify Company of any actual or suspected violation thereof and (iii) cooperate with Company with respect to investigation and enforcement of the Agreement. Client shall be solely responsible for all acts and omissions of its Users in connection with their access and use of the Subscription Services.
7.5 Modified Content; Proprietary Content. Certain Users designated by Client may have authority to modify portions of the Content to meet certain of Client’s needs or requirements (“Modified Content”) or to create unique content to meet certain of Client’s needs or requirements (“Proprietary Content”). In the case of Modified Content, Client shall own the specific modifications made by authorized Users (but not the underlying Content). In the case of Proprietary Content, Client shall own the Proprietary Content created by authorized Users.
7.6 Client Mark Permission. During the term of the Agreement, Client hereby grants to Company a non-exclusive, revocable, worldwide, royalty-free, fully paid-up license to use Client’s name and logo (collectively referred to as “Client Marks”) in connection with the marketing of products and services provided by Company on Company’s website. Any other uses shall be pre-approved by Client in a signed writing. Client grants no other right or license to any other intellectual property owned by Client by implication, estoppel or otherwise, unless otherwise provided for in the Agreement. Client represents and warrants that it owns all right, title and interest in, to and under the Client Marks, and that such Client Marks do not infringe or otherwise violate any third-party rights. Client agrees to notify Company promptly of any and all infringements and/or potential infringements of the Client Marks which come to its attention and to give reasonable assistance in preventing and stopping such infringements.”
7.7 Links. The Subscription Services may include links to third party Internet sites or other resources provided by third parties. Because Company has no control over such sites and resources, Client acknowledges and agrees that Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Client further acknowledges and agrees that Company shall not be responsible or liable, directly or indirectly, from any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party site or resource
7.8 Training Center Content. Client will own or obtain all proprietary rights necessary, including copyrights, patents, and trade secrets, in and to any Content it develops or uploads for use in the Training Center or provides to Company for purposes of building Client Courses.
8.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
8.2 LMS. Company warrants that the LMS will operate in all material respects in conformity with the functional specifications described in the Documentation. “Documentation” means the LMS User instructions, release notes and on-line help files in the form generally made available by Company to its clients, as updated from time to time by Company. If the LMS does not perform as warranted and there is a material failure of the LMS to conform to its functional specifications described in the Documentation that is reported by the Client to, and replicable by, Company (“Errors”), Company shall use commercially reasonable efforts to correct Errors. As Client's exclusive remedy for any claim under this warranty, Client shall promptly notify Company in writing of its claim. Provided that such claim is reasonably determined by Company to be Company’s responsibility, Company shall, within thirty (30) days of its receipt of Client's written notice, (i) correct such Error; (ii) provide Client with a plan reasonably acceptable to Client for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Company, then Company or Client may terminate the affected Subscription Services, and Client will be entitled to a refund of the pre-paid portion of the fees paid for the affected Subscription Services. The preceding warranty cure shall constitute Company’s entire liability and Client's exclusive remedy for cure of the warranty set forth herein in this Section 8.2. If Client elects not to terminate the Subscription Services, Client waives all rights for the applicable warranty cure set forth herein. Company is not responsible for any claimed breach of any warranty set forth in this section caused by: (i) modifications made to the LMS by anyone other than Company; (ii) Company’s adherence to Client’s specifications or instructions; (iii) Errors caused by or related to Internet connections; (iv) Client deviating from the LMS operating procedures described in the Documentation; (v) discrepancies that do not significantly impair or affect the operation of the Subscription Service; or (vi) any systems or programs not supplied by Company.
8.3 Professional Services. Company warrants that the Professional Services will be performed in a workmanlike manner. As Client’s exclusive remedy for any claim under this warranty, Client shall notify Company in writing of its claim within thirty (30) days of Company’s completion of the applicable services and, provided that such claim is reasonably determined by Company to be Company’s responsibility, Company shall re-perform the applicable service. Company’s entire liability and Client’s exclusive remedy for any breach of the warranty set forth in this section shall be the re-performance of the applicable service.
8.4 EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, ALL SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED ON AN ‘AS IS AS AVAILABLE’ BASIS. COMPANY, ITS LICENSORS, DATA CENTER AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SOFTWARE, DATABASE, CONTENT, DELIVERABLES OR PROFESSIONAL SERVICES ARE ERROR- FREE, ACCURATE OR RELIABLE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED OR WILL COMPLY WITH ANY LAW, RULE OR REGULATION, (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND (iii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY COMPANY, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE CONTENT IS NOT DESIGNED OR INTENDED TO MEET ALL OF ITS OR ITS USERS’ TRAINING AND EDUCATIONAL NEEDS OR REQUIREMENTS, INCLUDING TRAINING AND EDUCATION THAT IS REQUIRED UNDER APPLICABLE LAWS. CLIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES PROVIDED HEREUNDER TO ACHIEVE ITS INTENDED RESULTS. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL MODIFIED CONTENT AND PROPRIETARY CONTENT AND SHALL BE SOLELY LIABLE FOR ALL USE OF MODIFIED CONTENT AND PROPRIETARY CONTENT BY ITS USERS.
CLIENT ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND ITS DATA. ACCORDINGLY, COMPANY CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
CLIENT ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR ANY USERS’ COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. CLIENT FURTHER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR RESULTS OBTAINED FROM THE USE OF THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CLIENT ACKNOWLEDGES AND AGREES THAT THE SUBSCRIPTION SERVICES ARE NOT INTENDED TO PROVIDE MEDICAL ADVICE, OPINIONS, DIAGNOSIS, OR A SUGGESTED COURSE OF TREATMENT. CLIENT FURTHER AGREES THAT THE SOLE AND EXCLUSIVE RESPONSIBILITY FOR ANY MEDICAL DECISIONS OR ACTIONS WITH RESPECT TO A PATIENT’S MEDICAL CARE AND FOR DETERMINING THE ACCURACY, COMPLETENESS OR APPROPRIATENESS OF ANY DIAGNOSTIC, CLINICAL OR MEDICAL INFORMATION RESIDES SOLELY WITH THE HEALTHCARE PROVIDER. CLIENT ACCEPTS ALL LIABILITY FOR SUCH DIAGNOSIS OR TREATMENT. COMPANY SHALL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH CLIENT’S OR ANY OF USERS’ USE OF THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, IN COMBINATION WITH ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEB SITES THAT ARE ACCESSED VIA LINKS FROM WITHIN THE SUBSCRIPTION SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THIS AGREEMENT) TO CLIENT AND USERS FOR ANY CLAIM BY CLIENT OR ANY THIRD PARTIES UNDER THIS AGREEMENT, WILL BE LIMITED TO THE FEES PAID FOR SUCH ITEMS THAT ARE THE SUBJECT MATTER OF THE CLAIM FOR THE PRIOR TWELVE (12) MONTHS. IN NO EVENT WILL COMPANY, ITS LICENSORS AND SUPPLIERS BE LIABLE TO CLIENT OR USERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN THE SHORTER OF ONE YEAR OR THE PERIOD ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.
THIS SECTION 8 SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
9.1 Client Indemnification. Client shall indemnify and hold Company, its affiliates, suppliers, data center, employees and officers (a “Company Indemnified Party”) harmless from and against all liability, claims, damages, fines, losses, expenses (including reasonable attorney's fees and court costs, and the cost of enforcing this indemnity) suffered or incurred by Company or any Company Indemnified Party arising out of, or in connection with (a) any material breach by Client or any User of any of the terms of this Agreement; or (b) any use or reliance by Client or any User of any Content, Modified Content, or Proprietary Content, including all third-party claims, causes of action, suits, and legal proceedings asserted against Company or a Company Indemnified Party arising out of, or relating to, the use of or reliance by Client or any User on any Content, Modified Content or Proprietary Content.
9.2 Company Indemnification. Company shall indemnify and hold harmless Client and its principals, officers, directors, agents, and employees (the “Client Indemnified Parties”), and at Company’s option, either defend Client Indemnified Parties or pay their attorney’s fees and court costs, from any loss, cost, damage, or expense incurred by Client that is finally awarded by a court of law to any third party as a result of a claim alleging that the Subscription Services infringe or misappropriate a U.S. patent, U.S. copyright, U.S. trademark or U.S. trade secret of a third party, solely provided such alleged infringement or misappropriation does not arise from: (i) a modification of the Subscription Services as delivered to Client, (ii) the combination of the Subscription Services with any other process, hardware, software, data, or functionality, (iii) any data or content communicated using such Subscription Services; or, (iv) any use of the Subscription Services by Client in a manner inconsistent with the documentation or instructions provided by Company or otherwise in breach of this Agreement.
9.3 Indemnification Procedure. The indemnifications made hereunder are solely provided upon the following conditions: (i) the indemnifying party controls any settlement or any suit or claim indemnified hereunder (ii) the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed, is obtained prior to any settlement by the indemnifying party that affects the indemnified party’s rights and obligations; (iii) the indemnifying party is promptly informed of any third party claim indemnified hereunder; and, (iv) in the case of Client, Client ceases any alleged infringing activity upon actual or constructive notice of any claim or allegation of infringement.
Termination for any reason shall not excuse Client’s obligation to pay in full any and all amounts due or that become due through such termination or that arise under Section 10.6, nor shall termination result in a refund of fees paid, except as expressly provided otherwise in this Agreement.
Upon termination for any reason of a Professional Services engagement, all work product, including all drafts and works in progress of deliverables shall be delivered to Client. Upon its receipt of a notice of termination, Company shall cease and shall cause any agent or subcontractor to cease all work under the applicable Ordering Documents and minimize any additional costs or reimbursable expenses unless otherwise directed in writing by Client. Except as may be expressly set forth in the applicable Ordering Documents, Client shall pay Company’s fees for services performed to the date of termination on a T&M basis together with any expenses reasonably incurred in connection therewith.10.6 Survival. The following provisions will survive any termination or expiration of the Agreement or Ordering Documents: Sections 1 , 5, 6, 8, 9, 10 and 11.