This License Agreement (the "License") is made by and among Growth Resources Inc. ("Company"), a Delaware corporation with its principal offices located at 1390 Market Street, Suite 200, San Francisco, CA 94102, each "Affiliate" identified on an Order Form, and the entity ("Client") identified on the Order Form. The License shall be effective as of the date accepted by Company (the "Effective Date"). This License is a legal agreement between Company, each Affiliate, and the Client. Each reference to Affiliate hereunder shall be understood to refer to Company if a separate entity is not acting as the Affiliate pursuant to the Order Form. Each reference to Client hereunder shall be understood to refer to Partner too.
BY ACCEPTING THIS LICENSE, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS LICENSE, CLIENT AGREES TO THE TERMS OF THIS LICENSE. IF AN INDIVIDUAL IS ACCEPTING THIS LICENSE ON BEHALF OF AN ENTITY SUBSCRIBER, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THE ENTITY TO THIS LICENSE.
1) Definitions
In this License the following words and expressions shall have the following meanings:
'Administrator' means the employee(s) of the Client named as the Administrator on the Order Form and any replacement or addition notified to Company from time to time. An Administrator has been coached or trained to perform the functions of an Advanced User, has received a Company Advanced Certification and shall perform those duties set forth in Section 5(a).
'Advanced User' means an employee, consultant, or representative of the Client who has been trained to interpret, analyze or use the Licensed Program and the Company Products, has received a Company Advanced Certification by attending an Advanced Masterclass, and has greater access rights than Team Lead Users.
'Affiliate' means an organization that has entered into an Affiliate Agreement with Company whereby it has agreed to supervise GRI Facilitators in the provision of certain administrative support, billing, marketing, organization, and planning services provided to Client. An Affiliate is a corporation providing services to Client and is not an agent, employee, or representative of Company (provided Company itself is not performing the services of the Affiliate hereunder).
'Alliance Partner' or 'Partner' means an individual or an organization that has entered into an Alliance Agreement with Company and the Affiliate, to provide GRI Services or any other specific agreed services with the Company Products, to Clients or prospecting Clients.
'Client Data' means that data entered into the Licensed Program by Client that relates solely to the personal information of Users or the Client’s business operations.
'Commercial Use' means use for the purposes of monetary reward by means of the sale, re-sale, transfer, loan, hire, license, or other forms of exploitation of the Company Products.
'Company Certification,' 'GRI Certification' or 'Certification' means a certification bestowed upon an individual who has been trained or certified to interpret, analyze or make use of the Company Products as an Advanced User: a 'Company Advanced Certification,' or as a Team Lead User: a 'Company Team Lead Certification.'
'Company Products' means a component part, module, or product of the Licensed Program and related understanding systems, including but not limited to the Generated Works, instructions, advice, competencies, questions, pro-forma documents, reports, data, or any combination of the foregoing criteria, questions, behavioral indicators, communications, files, text, graphics, procedures, know-how, presentations, and manuals, whether written or in the form of a video or software program or in any other medium, the Company behavior survey and profile, the PBI survey and profile, the TBI profile, the interpretation of such profiles and surveys, and the instructions for making use of such profiles and surveys and other information that has been provided during a Company Certification, GRI Masterclass, GRI Consulting Services or other trainings and services, but excluding Client Data.
'Customized Content' means any materials or works generated by Company pursuant to the Customized Services (if any).
'Customized Services' means the customized services (if any) set out in the Order Form.
'Facilitator,' 'GRI Facilitator,' 'Consultant,' ‘GRI Consultant,’ or 'Consulting Associate' means an individual who provides certain demonstration, sales, training, coaching, recruitment, mentoring, and analysis related to the Company Products, or other consulting services regarding the use of the Company Products, and who is in charge of training, mentoring or coaching employees of the Client. A GRI Facilitator has received a Facilitator Certification in the interpretation, analysis, and utilization of the Licensed Program and the Company Products, and other information only available to Advanced Users and Administrators. A GRI Facilitator may be either an outside consultant of, or an employee of, Company or an Affiliate or a Partner. If GRI Facilitator is not an employee of Company or of an Affiliate or of a Partner, as applicable, the GRI Facilitator shall not be an agent or representative of Company or of an Affiliate or of a Partner, as applicable.
'Fee' means (i) the annual license fee payable by the Client in consideration of the grant to the Client of the Rights; (ii) fees payable by the Client in consideration of the services provided by the Company or Affiliate; and (ii) any additional fees payable by the Client in respect of the Customized Services, in the amounts specified in the Order Form or otherwise agreed in writing by the parties hereto.
'Feedback' means remarks, comments, or testimonials resulting from User experiences with the Company Products. Feedback may be solicited by Company from time to time.
'Generated Works' means organizational charts, competencies, behavior profile graphs that are generated from the assessment process and which indicate how a person behaves, derives motivation, and adapts to the environment, and any type of indicator, measure, interview question, compilation, analysis and other material generated as a result of the operation of the Licensed Program.
'GRI Service' or Service means a service provided by Partners, Facilitators, or Advanced Users following either a Company Certification or a Facilitator Certification depending on the service, and delivered to individual contributors, potential Clients, or Client.
'Intellectual Property' means any and all intellectual property rights of any nature including patents, rights to inventions, utility models, copyright and related rights, future copyright, trademarks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, registered designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how, trade secrets, and business methods) and any other intellectual property rights, in each case whether in existence now or coming into existence in the future, registered or unregistered and including all applications for and renewals or extensions of such rights, rights to apply for registration, and all similar or equivalent rights or forms of protection in any part of the world.
'License Period' means the period commencing on the Start Date and ending one calendar year thereafter unless adjusted pursuant to Section 3 hereunder.
'Licensed Program' means the Company software and database product specified in the Order Form including all updates, amendments, fixes, additions to, and new versions thereof introduced (at Company’s discretion) during the License Period.
'Licensed Program Access Platform' means the computer hardware, systems, or other platforms from which the Licensed Program is made available for access.
‘Masterclass,’ ‘GRI Masterclass,’ 'GRI Event' or 'Event' means an in-depth, comprehensive program organized by an Affiliate and facilitated by a GRI Facilitator, during which the employees of Clients are trained and certified to use the Company Products. A Masterclass may be organized through a series of self-paced, online, and onsite sessions or in a blended fashion(a combination of self-paced, online and on-site sessions). A GRI Event may sometimes be referred to as a ‘GRI Training,’ ‘Training,’ ‘GRI Seminar,’ or ‘Seminar’ (terms discontinued in 2020).
'Order Form' means the ordering document and any addenda thereto, which is incorporated herein by reference and made a part hereof of this License.
'Password' means the confidential, personal, non-transferrable password or username issued by the Client to each authorized User.
'Problem' means the problem or issue encountered by Client in the reasonable use of the Licensed Program that degrades the performance of the Licensed Program that the Company finds to be due to a defect or error in the Licensed Program.
'Simple User' means a person who has received a permitted Password for a restricted viewing of the Company Product in the context of the Client’s business. A Simple User may enter data into the Licensed Program, but does not have the data access and data manipulation authorization granted to Administrators, Team Lead Users or Advanced Users. A Simple User may or may not be employed by the Client, may be a candidate of the Client or in a business relationship with the Client.
'Rights' means the non-exclusive, non-transferable right for the License Period for the Client's internal business purposes and not for Commercial Use:
(a) for the designated number of Client employees set forth on the Order Form, for Users to access their User Personal Data and to access the Licensed Program to retrieve Generated Works, provided such access has been authorized by the appropriate Administrator, Team Lead Users or Advanced Users for the Client;
(b) for the designated number of Client employees set forth on the Order Form for Users to access the Licensed Program and to search, retrieve and generate an unlimited number of Generated Works;
(c) to print off and/or copy Generated Works for exclusive use by the Administrators, Team Lead Users, and the Advanced Users pursuant to this License; and
(d) to use the systems, methods, and related materials of the Company Products in Client’s use of the Licensed Program.
'Team Lead User' means an employee, consultant, or representative of the Client who has received access to the Licensed Program and Company Products, has received a Company Team Lead Certification and has greater access rights than Simple Users.
'Technical Service(s)' means the technical support services as set forth in Section 7.
'Start Date' means the date on which access to the Licensed Program is granted to the Client and which is set out in the Order Form.
'User' means the individual or individuals (including Administrators, Advanced Users, Team Lead Users, and Simple Users) who are registered with Company as authorized users of the Licensed Program and who have a permitted Password. Client understands and agrees that Users shall not be permitted access to the Licensed Product or the Company Products for Commercial Use under any circumstances.
'User Personal Data' means those profiles or reports relating to an individual User that are made available to the individual User by the Administrator for the personal use of the User.
'Website' means Company’s password-protected website through which the Licensed Program can be accessed, which is currently https://www.gri.co/.
2) Grant of Rights and Restrictions on Use
(a) Subject to the terms and conditions contained in this License, Company grants to the Client the Rights in the Company Products for the License Period. Company retains sole ownership of all Intellectual Property in the Company Products. For the avoidance of doubt, Intellectual Property in any Customized Content shall be owned by Company and Company will have the right to use the Customized Content without limitation.
(b) Company reserves the right at any time to withdraw any components or features of the Company Products included in it:
(i) if Company ceases for whatever reason to offer the withdrawn material to Users generally; or
(ii) if in Company’s sole discretion Company believes that there is a reasonable chance that use of the withdrawn material would amount to an infringement of copyright, database right, defamation or any other unlawful act.
On receipt of notice from Company of the withdrawal of material, Client shall be provided with access to the Client Data and Generated Works as set forth in Section 15.
(c) The Client acknowledges and agrees that the Client shall not:
(i) amend or alter the Company Products without written authorization from Company, and any such amendments made by the Client shall belong to Company and become part of the Company Products at the sole discretion of Company;
(ii) use the Company Products for any Commercial Use;
(iii) except to the extent necessary to exercise the Rights granted by this License, store the Licensed Product transiently or permanently on any medium;
(iv) frame, link to or copy any part of the Licensed Product;
(v) use any data mining, robots or similar data extraction methods within the Licensed Program;
(vi) transcribe or copy the Company Products or any part thereof, including any data, into any kind of information retrieval system, including a database or software program, without the express written permission of Company; or
(vii) reverse engineer, transfer, transmit, reproduce, loan to any third party, publish or otherwise exploit, run statistical analyses, modify or combine with other material the Licensed Program or any part thereof.
3) Duration of License
The License Period shall automatically renew on each anniversary of the initial term for an additional one-year term at the then-applicable Fee. The Fee for each renewal term shall be received by Company or Affiliate within 30 days of the effective date of such renewal. Either Company or Client may elect not to extend the License Period by providing the other parties with written notice at least 90 days prior to the effective date of the renewal. No Affiliate may terminate this Agreement, but any Affiliate may assign this contract to another Affiliate approved by Company in advance pursuant to Section 16 herein, and Client hereby consents to any such assignment. Company may elect to suspend the License Period until the Fee for the renewal term has been received.
4) Obligations of Company
Company shall, during the License Period:
(a) use commercially reasonable efforts to ensure that the Licensed Program Access Platform has sufficient capacity, band width, and rate of connectivity to provide the Client with a quality of service comparable with the current standards in the World Wide Web online information provision industry;
(b) provide the Client with the standard Licensed Program features;
(c) provide the Client with information necessary to access the Licensed Program online;
(d) use all reasonable efforts to restore access to the Licensed Program as soon as reasonably possible in the event of an interruption or suspension of availability; and
(e) provide the Services as set forth in the Order Form and the Technical Support Terms set forth in Section 7,
5) Obligations of the Client
The Client shall:
(a) appoint an Administrator whose responsibilities shall include, but shall not be restricted to:
(i) Managing the relationship with Company, the Affiliate, and the GRI Facilitator, acting as the liaison with Company for technical support and the reporting of Problems and with the Company, Affiliate and GRI Facilitator regarding their provision of services hereunder, including all administrative and billing issues;
(ii) Administering the Client’s obligations under the License; and
(iii) Ensuring that all Users of the Company Products within the Client’s organization are using the product in accordance with this License and the Terms of Use of the Company (found on the Website) and that full respect is afforded to their obligations set out in paragraph 5(e).
(b) provide complete and accurate registration, ordering and financial details;
(c) amend the Order Form and registration details promptly and in any event within ten (10) working days following any additions, deletions or other alterations, including changes to the Administrator and number of employees ;
(d) protect and maintain as confidential all assigned Passwords and ensure that only Users are permitted access to the Licensed Program and that all Users abide by the provisions of Section 2 of this License and enter into and abide by the Terms of Use;
(e) notify Company immediately if the Client becomes aware that there has been unauthorized access to or use of the Passwords or the Company Products;
(f) obtain at its cost all telecommunications and other equipment and software together with all relevant software licenses necessary to access the Licensed Program from the Licensed Program Access Platform;
(g) as soon as practicable on becoming aware of any claim by any third party that the Company Products infringes any Intellectual Property or proprietary right of any third party, notify Company of such claim;
(h) as soon as practicable after becoming aware of any breach by a User of the terms of this License or the Terms of Use, terminate such User’s access to the Licensed Program and notify Company in writing of such breach;
(i) ensure that any User of the Licensed Program is aware of the restrictions put on their use of the Licensed Program that are contained in this License or the Terms of Use, is competent in the use and principles of the Licensed Program and that such use is supervised by an Advanced User or a GRI Facilitator;
(j) ensure that individuals automatically cease to be able to access the Licensed Program immediately upon ceasing to be employed by the Client;
(k) ensure that new or updated registration details are provided to Company during the License Period;
(l) ensure that all Administrators, Advanced Users and Team Lead Users (but not Simple Users) have been trained and have received a Company Certification in the use of the Company Products and Licensed Program according to their specific role as Advanced Users or Team Lead Users, prior to accessing the Licensed Program;
(m) ensure that the facilities and functions of the Licensed Program meet the Client’s requirements. The Client acknowledges and agrees that the Licensed Program has not been developed to meet customized requirements unless specifically agreed with Company in writing;
(n) ensure that the Company Products and Licensed Program are used in appropriate situations and only by appropriately trained and supervised individuals. Client acknowledges and agrees that Company accepts no liability for their use, or any recruitment, management, mentoring, coaching, organizational or employment decisions or claims made on the basis of or derived from the Company Products or associated procedures;
(o) abide by all laws, regulations or restrictions applicable to the use of the Company Products that are relevant to its local jurisdiction. Company shall have no liability in this respect and, unless otherwise specifically agreed by Company in writing, the Company Products is not in any way adapted to take account of local or national laws, restrictions or regulations; and
(p) take all commercial precautions to prevent damage to its IT system or software, including running an anti-virus program on all material downloaded from the Internet.
6) Obligations of the Affiliate
During the term of this Agreement, Affiliate shall provide the following services to Client:
(a) Arrange GRI Events and such other events as shall be approved by Company.
(b) Manage the work of GRI Facilitators, Partners, and employees of Affiliate that
work with Clients of the Company and monitor such GRI Facilitators’, Partners’ and employees’ compliance with the terms of the agreements relating to the provision of their services.
(c) Invoice and collect payment from Clients.
(d) Provide administrative support to Clients, Partners and GRI Facilitators regarding the Company Products.
(e) Such other services as the parties hereto may reasonably request from time to time.
7) Technical Support
Company agrees to provide the following technical support to Client through support e-mail, telephone or such other methods as are made available by Company.
The Administrator will be authorized to correspond with Company on administrative and Technical Support issues and to report Problems as defined below:
• Accepts support requests via email and phone from Monday through Friday, 8am until 6pm (Pacific Standard Time).
• Response time is a maximum of one business day from logging of support request.
Company will use commercially reasonable efforts to resolve each Problem. Company’s resolution may include providing a fix or mutually agreed upon workaround or other commercially reasonable remedy.
Client agrees that Company may collect and use information associated with the Services for business purposes that do not publicly identify Client.
Prior to submitting a Problem report, Client shall make reasonable efforts to resolve the Problem and shall only report reproducible Problems. Client's technical support contacts shall report any Problem encountered by submitting a Problem report using the support e-mail.
Company’s response to the Problem shall acknowledge receipt of the Problem report and that Company has begun to investigate the Problem.
Company shall have no obligation to support: (i) Problems caused by Client's negligence, abuse or use of the Licensed Program other than as specified in the documentation or other causes beyond the control of Company, or (ii) The Licensed Program accessed on any hardware or used with third party services or software that are not supported by Company.
8) Fee and Payment Terms
The Fee for the License, Events and services provided by the Affiliate and GRI Facilitator is set out in the Order Form and shall be payable directly to the Company or Affiliate. Company shall be free to change the Fee in respect of License renewals without notice. The Fee is exclusive of any applicable costs, including but not limited to any applicable taxes assessable by any local, state, provincial, federal or foreign jurisdiction, all of which could be subject to change. Client shall be responsible for paying all taxes associated with Client's use of the Licensed Program. If Company or Affiliate has the legal obligation to pay or collect taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client. Unless otherwise specifically agreed with Affiliate, the Fee shall be paid in US dollars, as set forth on the Order Form, or such other currency as the Affiliate shall expressly agree in writing with the Client.
The Client shall bear all charges in relation to bank transfers and currency transactions.
All Fees shall be due in full and in advance of the Client being granted the right to use the Licensed Program and the Company Products. Unless otherwise agreed in writing with Company, Fees for Customized Services shall be charged on a time and materials basis at Company’s then-standard hourly or daily rates for such services. In the event that any amount is not paid by the due date for payment, the Client shall pay interest on such amount from the due date for payment until payment is made in full at a rate equal to .67 percent per month (8% per annum). The Fee shall not be considered paid until it has been received by the Affiliate in cleared funds. Fourteen (14) days should be allowed for clearance of checks or money orders. Failure to provide accurate financial information may delay the Client’s access to the Licensed Program. The Fee is non-refundable and payment obligations are non-cancelable.
9) Promotion
Company may include Client's name and logo in customer listings on the Website and in marketing materials. In addition, upon reasonable request by Company or Affiliate, Client agrees to act as a reference for Company, including taking reference calls from prospective customers, reporters and analysts and agrees to be interviewed for testimonials for Company marketing purposes.
10) Company’s Warranties; Disclaimers
Company represents and warrants that it has the right to license the Rights granted to the Client under this License. The warranty set out in this Section is in lieu of all representations, warranties, terms and conditions, whether express, implied by or arising under statute or common law, custom, trade usage or course of dealing between the parties or otherwise, including warranties of merchantability and fitness for a particular purpose, all of which are hereby excluded to the fullest extent permitted by law.
The Company Products are provided on an 'as is' and 'as available' basis and accordingly Company does not give any warranty express or implied or make any representation:
(a) that the Company Products will be suitable for any specific requirement, use or conditions of the Client or of any User even if such requirement or use or conditions may be known to Company; or
(b) that Company’s online service will operate error free or without interruption or that any errors will be corrected; or
(c) that the Licensed Program is complete or accurate or up to date.
Information from Company, the Affiliate, the GRI Facilitator, or the Licensed Program does not constitute advice or a recommendation by Company or the Affiliate, or the GRI Facilitator and is not intended to be relied upon by you in making (or not making) any decisions. The obligation to train, manage, recruit, hire, and supervise employees or affiliates of the Client rests solely with the Client and Company, the GRI Facilitator and the Affiliate make no representations to the Client regarding the potential success of using the Company Products to fulfill such obligations.
11) Liability
(a) The following provisions set out the entire financial liability of Company and Affiliates (including any liability for the acts or omissions of its employees, agents, value-added resellers, and sub-contractors) to the Client in respect of:
(i) any breach of this License;
(ii) any use of the Company Products; and
(iii) any representation, statement or tortuous act or omission, including negligence arising under or in connection with the License.
(b) Company’s and Affiliates liability under this License shall be limited:
(i) to exclude altogether liability howsoever arising for loss of profits, loss of business or of anticipated savings, loss of goodwill, loss of income, loss of reputation, loss or corruption of data (whether of the Licensed Program, the Client Data, or of other data, whether caused by processing or transmission of it) and for any other type of special, indirect, incidental or consequential loss or damage, even if advised in advance of the possibility of such damages;
(ii) to exclude liability for any acts, omissions or negligence of third parties (e.g. Internet failure);
(iii) to exclude any liability for any decisions that are made as a result of the use of the Company Products;
(iv) with respect to Company, to exclude any liability for the actions of Affiliates (if a separate entity from Company) and GRI Facilitators;
(v) with respect to Affiliates, to exclude any liability for the actions of the GRI Facilitators (if not employees of Affiliate); and
(vi) in any License Period, to the Fee paid for that License Period.
Company and Affiliates are not, and Client acknowledges and agrees that Company and Affiliates shall not be, responsible for and do not endorse any non-Company software or external website linked to or from the Website. Company and Affiliates do not accept, and Client acknowledges and agrees that Company and Affiliates shall not have, any responsibility for any loss, disruption or damage to the Client Data or the Client’s computer system, which may occur whilst using the Website or the Licensed Program and any resulting damage to the Client’s computer or loss of Client Data will be the Client’s sole responsibility. Company and Affiliates do not accept, and Client acknowledges and agrees that Company and Affiliates shall not have, any responsibility for the accuracy, quality, integrity and legality of the Client Data and of the means by which Client acquired the Client Data.
(c) The Client hereby agrees to indemnify Company, and Affiliate and hold Company and Affiliates and their Partners, GRI Facilitators, subsidiaries, affiliates, officers, directors, agents and employees, successors and assigns, harmless, both during and after the License Period, from any liability for any claims, demands, damages and expenses, including reasonable lawyers’ fees, made by any third party whether in contract, tort or otherwise and due to or arising out of:
(i) the Client’s use of the Website or the Company Products or any part thereof in breach of this License;
(ii) any other breach of this License; and/or
(iii) the violation of any law or the rights of a third party or arising out of any materials or data submitted to Company by or on behalf of the Client.
12) Intellectual Property
The Client acknowledges that Company is the owner of all Intellectual Property in the Company Products, except for other third party products that might be embedded therein.
Growth Resources and other associated Company logos and marks ("Trademarks") are the registered Trademarks of Company and the Client hereby acknowledges and agrees:
(a) that the Trademarks are the property of Company;
(b) that use of the Trademarks by the Client will at all times be in keeping and consistent with the style and reputation of Company and retained as they appear on any Generated Works or other Company Products;
(c) to maintain the distinctiveness and reputation of the Trademarks and not to use the Trademarks in any way that would bring the reputation of Company into disrepute or to create a link to the Website without the express authorization of Company;
(d) any goodwill in the Trademarks arising as a result of their use by the Client shall accrue to and/or is hereby assigned to Company; and
(e) not to use any mark or name confusingly similar to the Trademarks in respect of goods similar to the Company Products or in any literary works or as part of any corporate business or trading name, domain name or website (including as a meta tag) of the Client.
Other than as expressly set out herein, nothing contained in this License gives the Client or any User any ownership rights or any license or other rights (by implication or otherwise) in the Intellectual Property (including the Trademarks) or confidential information of Company and/or its licensors in the Company Products. Nothing in this License shall give one party any rights to the Trademarks or brands of the other party other than as expressly set out herein. The correct and appropriate use of Company’s Intellectual Property is a fundamental obligation of the Client and a condition to the grant of this License. Breach of this Section 12 by the Client and any unauthorized use of the Company Products or any other misuse or infringement of the Intellectual Property of Company by the Client will be a material and fundamental breach of this License entitling Company to terminate the License forthwith, to claim against the Client’s indemnity hereunder and may also entitle Company to initiate other judicial proceedings.
13) Data Protection, Privacy and Confidentiality
(a) The Client, Affiliates and Company shall comply with relevant national and international law on data protection and with Company’s Privacy Policy (as it appears on the Website from time to time) in relation to the use of the Licensed Program and the Client Data, and the Client shall ensure that it has obtained all necessary consents before passing personal data to Company or Affiliates for processing. Furthermore, the Client consents to the processing of all data and personal information supplied to Company or Affiliates for the purposes of this License and the effective use of the Licensed Program, including for the purpose of monitoring and improving the quality of the Licensed Program, for publishing market surveys or academic research and for providing Client any requested information.
(b) Each party shall keep confidential all information obtained from any other pursuant to this License and shall not divulge such information to another party without the relevant party’s written consent unless ordered to make such a disclosure by a court of competent jurisdiction or other empowered tribunal or authority or unless otherwise required by law. Where disclosure is ordered or required under law, each party will inform the other of the required disclosure. Each party will ensure its employees; sub-contractors and agents are bound by this Section, which shall not restrict the use of information lawfully in the public domain.
(c) Client represents and warrants that it has the right to disclose the Client Data to Company, Facilitators, Partners and Affiliates, and cause the Client Data to be stored by Company and that Company's processing of the Client Data as required for the performance of this License shall not violate the rights of any third party.
14) Termination
(a) Company may terminate this License immediately by written notice to the Client if:
(i) the Client commits an irremediable breach of this License;
(ii) the Client commits a material or persistent breach of this License that the Client fails to remedy (if remediable) within 14 days after the service of written notice requiring the Client to do so and, for the avoidance of doubt, any misuse of Company’s Intellectual Property shall constitute a material breach;
(iii) Client becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or
(iv) if there is a direct or indirect change of control of the Client or the parent company of the Client to a Company competitor.
(b) Alternatively, Company reserves the right to refuse access to all or some of the Company Products to any person, firm, company or legally constituted institution or organization or other legal entity (including any User) who is in breach of the standards of use required by this License or is otherwise in breach of the License.
15) Effect of Termination
Upon an expiration or termination of this License for any reason, Client shall lose all access to the Website and the Licensed Program. Within thirty (30) days after the termination or expiration of this License, Company shall make available to Client for export a copy of the Client Data and Client's Generated Works. After such 30-day period, Company shall have no obligation to maintain or provide any of the Client Data, Generated Works, or any other data, to Client and shall thereafter, unless legally prohibited, delete all of the Client Data and Generated Works in Company's or Affiliate’s possession or under Company's or Affiliate’s control.
16) Transfer of Rights and Obligations; Attorney in Fact
This License is binding on the Client, Company, Affiliates and their respective successors and assigns. The Client and the Affiliate may not transfer, assign, charge or otherwise dispose of this License, or any of the rights or obligations arising under it, without Company’s prior written consent. Company may transfer, assign, charge, sub-contract or otherwise dispose of this License, or any of Company’s rights or obligations arising under it, at any time during the term of the License. Client acknowledges and agrees that an Affiliate may, with Company’s consent, assign its rights and obligations hereunder, and Client consents to such assignment and the substitution of another entity as the Affiliate providing services to Client hereunder.
Upon the approved assignment of this Agreement by Affiliate, or the termination or assignment of the Affiliate’s interest in the Affiliate Agreement, Affiliate acknowledges and agrees that it shall execute any documents Company deems necessary for the appropriate assignment of its interest in this Agreement to the successor or assignee party designated by Company. Affiliate agrees to assist Company in every reasonable way requested by Company, to effect such assignment as Company deems appropriate. Notwithstanding the foregoing, Affiliate (on its own behalf as well as on behalf of Affiliate personnel) hereby irrevocably appoints Company as attorney in fact (coupled with an interest) to execute any instruments for such purpose. The foregoing powers of attorney and the obligations to assist and execute will survive termination of this Agreement and the Affiliate Agreement for any reason.
17) Force Majeure
Neither Company nor Affiliate will be liable or responsible to Client for any failure to perform, or delay in performance of, any of their obligations under this License that is caused by events outside their reasonable control ("Force Majeure Event"). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Company’s or Affiliate’s reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other labor actions;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks;
(f) the acts, decrees, legislation, regulations or restrictions of any government; and
(g) Internet service provider failures or delays.
Company’s and Affiliates’ performance under this License is deemed to be suspended for the period that the Force Majeure Event continues, and each will have an extension of time for performance for the duration of that period. Company and Affiliate will use their reasonable efforts to bring the Force Majeure Event to a close or to find a solution by which their obligations under this License may be performed despite the Force Majeure Event.
18) General
(a) Headings. The headings in this License are for convenience only and shall not affect its interpretation.
(b) Amendments. Company may amend, vary or revise this License from time to time. Company shall notify the Client and Affiliates of such revised License, which shall be binding on the parties unless (i) the Client wishes not to accept the new License, in which case the Client shall cease using the Licensed Program and the License shall immediately terminate or (ii) the Affiliate wishes not to accept the new License, in which case the Affiliate’s rights and obligations hereunder shall be assigned to a new Affiliate and the original Affiliate shall no longer be a party thereafter.
(c) Rights of Third Parties. A person who is not party to the License shall have no right under the License. There are no third-party beneficiaries to this License, except with respect to Partner and GRI Facilitator’s rights set forth in Section 11(c).
(d) Waiver. If Company fails, at any time during the term of this License, to insist upon strict performance of any of the Client’s obligations under this License, or fails to exercise any of the rights or remedies to which Company is entitled under this License, this shall not constitute a waiver of such rights or remedies and shall not relieve the Client from compliance with such obligations. A waiver by Company of any default shall not constitute a waiver of any subsequent default. No waiver by Company of any of the terms and conditions of this License shall be effective unless it is expressly stated to be a waiver and is communicated to the Client in writing.
(e) Severability. If any of the terms of this License are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
(f) Entire Agreement. This License, and any document expressly referred to herein, including the Order Form, represent the entire agreement between Company, each Affiliate and the Client in relation to the licensing of the Licensed Program, the Company Products and the Generated Works and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing, including any earlier terms and conditions relating to the Company Products appearing in Company's catalogues, websites or elsewhere, Affiliate’s marketing, or referred to by the Client whether in the Order Form or during any negotiations.
(g) Law and Jurisdiction. The terms and conditions of this License shall be governed and construed in accordance with the laws of the United States and the State of California and, for any judicial dispute arising out of this License, the parties consent to the exclusive jurisdiction of the state courts located in San Francisco County, California, and the federal courts located in San Francisco, California.
(h) Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination or validity of this Agreement will be submitted to arbitration as prescribed herein. Any arbitration related to this Agreement will be governed by and construed in accordance with the terms of this Section. The parties will agree on a single arbitrator engaged in the practice of law within thirty (30) days of receipt of a notice of intent to arbitrate. Such arbitrator will be knowledgeable about the industry and law relevant to this Agreement and will conduct the arbitration under the current rules of the American Arbitration Association (“AAA”), unless otherwise provided herein. The arbitrator will be selected in accordance with AAA procedures from a list of qualified people maintained by AAA. The arbitration will be conducted in San Jose, California. The arbitrator’s decision and award will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereon. Any duty to arbitrate under this Agreement will remain in effect and enforceable after termination of this Agreement for any reason. Because both parties to this Agreement have been represented by legal counsel, and the parties have had the opportunity to negotiate individual provisions of this Agreement, the arbitrator will not construe any ambiguity that may exist in this Agreement in favor of or against either party. If any provision of this agreement to arbitrate is held invalid or unenforceable, it shall be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable.
