CERTIFICATE CLOUD SERVICES TERMS AND CONDITIONS

1. DEFINITIONS.

 

1.1 “Authorized User” means those employees, agents, customers and independent contractors of Customer that have been assigned a user ID or password and authorized by Customer to access and use the Services.

1.2 “Certificate Cloud Services” means the products and services offered by Accredible under the name “Accredible Certificates”, “Accredible Portfolios”, “Accredible Professional Profiles” or successor branding. Certificate Cloud Services exclude: (a) third party Credentials including without limitation any certification, testing, identity verification; and (b) non-Accredible applications.

1.3 “Confidential Information” shall have the meaning set forth in Section 11.1.

1.4 “Content” means the Accredible content, information, data products and services made available as part of the Certificate Cloud Services.

1.5 “Credentials” means evidence of achievement, ability, attainment, authenticity, compliance, completion, eligibility, entitlement, experience, identity, membership, qualifications, title or other attributes, qualities or traits.

1.6 “Customer Data” means Customer’s content, information and data which Customer desires to process and disseminate by accessing and using the Service and any Customer icons, marks and/or logos Customer desires to have displayed on the Service Pages. As between Customer and Accredible, Customer Data shall also include Credentials whether of (or issued by), Customer or third parties

1.7 “Documentation” means the online guides and user manuals for the Service.

1.8 “Intellectual Property Rights” means all patents, patent registration or applications, business processes, data rights, copyrights, trade names, trademarks, trade secrets, know-how, mask works, or any other intellectual property rights, whether registered or unregistered, arising or enforceable under United States law or the law of any other jurisdiction.

1.9 “Term” shall have the meaning set forth in Section 7.1.

1.10 “Third Party Applications” means third party applications, websites, and services.

2. LICENSE GRANTS.

 

2.1 Service. Subject to the terms and conditions of this Agreement, Accredible grants Customer a non-exclusive, non-transferable, worldwide license to access and use the Services to input and process Customer Data for Customer’s own internal business purposes to provide digital certificates of Credentials. Customer shall only allow Authorized Users to access the Service, and shall ensure that Authorized Users comply with the terms and conditions of this Agreement and any terms associated with the use of Third Party Applications. There are no implied licenses. All rights not expressly granted are reserved by Accredible and its licensors.

2.2 Restrictions. Customer shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (other than Authorized Users) the Services or the Content in any way; (b) modify or make derivative works based upon the Service or the Content; (c) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; (d) attempt to access portions of the Certificate Cloud Services for which it has not ordered; or (e) reverse engineer or access the Service in order to: (i) build a competitive product or service; or (ii) copy any Content or any ideas, features, functions or graphics of the Service.

2.3 Customer Data. Customer hereby grants to Accredible a non-exclusive, worldwide license, to use, reproduce, create derivative works, display, store and perform Customer Data as reasonably necessary to provide the Services for access and use by Authorized Users.

3. OWNERSHIP.

 

Accredible and its suppliers shall own all right, title and interest in and to any Intellectual Property Rights in and to the Certificate Cloud Services, Documentation and derivative works thereof and related materials. Customer shall own all right, title and interest in and to Customer Data and all Intellectual Property Rights therein. All right, title and interest in Third Party Applications is the property of the respective owner.

4. OPERATION OF THE SERVICES.

 

4.1 Implementation of Services. Promptly following the Effective Date, Accredible shall provide Customer with access to the Services. Customer will issue passwords to its Authorized Users and Customer acknowledges that Customer is fully responsible for all liabilities incurred by such use, and for any liabilities incurred through use of such passwords by anyone who obtains such passwords until Customer notifies Accredible’s customer service of such unauthorized use. Accredible may temporarily disable access to the Service if Customer reports unauthorized use of the Service.

4.2 Services Operation. Accredible shall host, maintain and operate the Certificate Cloud Services for use by Customer and Authorized Users. Accredible shall use commercially reasonable efforts to: (a) deploy industry standard security and encryption controls including without limitation, firewall and SSL technology; (b) monitor, track and report on Certificate Cloud Services availability; and (c) limit access to the Services only to Authorized Users.

4.3 Compliance With Laws. Customer shall use the Services in compliance with all applicable laws, statutes, rules, regulations and terms of service. If necessary to comply with any of the foregoing, Accredible may modify or suspend access to the Service. This remedy shall be in addition to, and shall not limit Accredible’s ability to terminate this Agreement based on material breach or pursue damages or other remedies available under law and equity.

4.4 Upgrades. Customer understands that Accredible may make upgrades to the Certificate Cloud Services or the manner in which they are made available, and that those upgrades may create differences in how the Certificate Cloud Services operate in the future.

5. FEES AND PAYMENT.

 

5.1 All payments of fees and charges are due net thirty (30) days from the date of invoice, subject to Customer’s maintaining satisfactory credit arrangements with Accredible. Accredible reserves the right to modify Customer’s credit terms at any time. Amounts not paid when due are subject to a late payment charge of one and one-half percent (1.5%) per month or, if less, the highest rate permitted by law. All payments will be made in U.S. dollars unless otherwise agreed in writing by both parties.

5.2 The prices for the Service are exclusive of all federal, state, or local sales, use or excise taxes, Customer shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, excluding taxes based on Accredible’s net income.

6. CUSTOMER RESPONSIBILITIES.

 

6.1 Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, including the authenticity, validity and content of Credentials. Customer shall ensure that Customer and Authorized Users comply with any terms of use associated with Third Party Applications. Accredible shall have no responsibility or liability for Customer Data included in, or used in conjunction with the Services. For example, if Customer Data contains outdated or inaccurate information, Accredible shall not be responsible or liable for such outdated or inaccurate information. Customer acknowledges that Accredible is not affiliated with any issuer of Credentials and that Customer’s selection and use of Credentials is at Customer’s sole risk and expense.

6.2 Customer shall not: (a) send spam or otherwise duplicative or unsolicited messages; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Certificate Cloud Services; or (e) attempt to gain unauthorized access to: (i) the Certificate Cloud Services or its related systems or networks; (ii) other user’s accounts; or (iii) optional components of the Certificate Cloud Services that Customer has not paid for.

6.3 If Customer collects personal information from Authorized Users, Customer represents and warrants that it will comply with all applicable laws and maintain and display a privacy policy that is consistent with the best practices of the industry.

6.4 Customer shall indemnify Accredible and its suppliers against any and all claims, losses, costs and expenses, including reasonable attorneys’ fees, which Accredible and its suppliers may incur arising from Customer’s failure to comply with Customer responsibilities.

7. TERM AND TERMINATION.

 

7.1 This Agreement shall commence on the Effective Date and shall remain in effect for the Initial Term, unless the Agreement is: (a) terminated earlier as provided in Section 7.2; or (b) extended for a new one year term. Upon completion of the Initial Term the Agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term”) unless either party gives notice in writing to the other of non-renewal at least sixty (60) days prior to the expiration of the then-current term. The Initial Term, together with all Renewal Terms shall be the “Term”.

7.2 Either party may terminate this Agreement after written notice of a material breach by the other party as provided below, subject to a thirty (30) day cure period. If the breaching party has failed to cure the breach within thirty (30) days after the receipt by the breaching party of written notice of such breach, the non‑breaching party may give a second written notice to the breaching party immediately terminating the Agreement.

7.3 Upon the termination or expiration of this Agreement: (a) all licenses granted to Customer hereunder shall immediately terminate; and (b) each party shall, at the other party’s option, return or destroy all copies of Confidential Information or other material then in its possession owned solely by such other party and upon written request provide written certification by an authorized officer of such destruction. Upon the termination or expiration of this Agreement the definitions contained herein and the following Sections 1, 3, 6, 7.3, 8, 9, 10, 11 and any payment obligations incurred prior to the termination or expiration of this Agreement shall survive such termination or expiration.

8. WARRANTY DISCLAIMER.

 

THE CERTIFICATE CLOUD SERVICES, DOCUMENTATION AND ANY SUPPORT SERVICES ARE PROVIDED “AS IS”. ACCREDIBLE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. ACCREDIBLE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ACCREDIBLE’S NETWORK AND OTHER PORTIONS OF THE INTERNET. ACCORDINGLY, ACCREDIBLE DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. Customer acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.

9. LIMITATION OF LIABILITY.

 

EXCEPT FOR BREACH OF SECTION 2.1, 2.2 OR 10, OR CUSTOMER’S FAILURE TO COMPLY WITH SECTION 6, IN NO EVENT SHALL: (A) EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AND (B) EITHER PARTY’S TOTAL LIABILITY FOR DAMAGES HEREUNDER EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID TO ACCREDIBLE BY CUSTOMER TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FIRST OCCURRENCE TO THE EVENTS GIVING RISE TO THE IMPOSITION OF LIABILITY HEREUNDER. CUSTOMER AND ACCREDIBLE AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

10. CONFIDENTIAL INFORMATION.

 

10.1 Any information that is transmitted by one party (the “Disclosing Party”) to the other (the “Receiving Party”) hereunder and: (a) if in written form, is marked “confidential” or with a similar legend by the Disclosing Party before being furnished to the other; or (b) if disclosed orally or visually is identified as such prior to disclosure and summarized, in writing, by the Disclosing Party to the Receiving Party within thirty (30) days, shall be deemed to be the confidential information of the Disclosing Party for purposes of this Agreement (“Confidential Information”). Each Receiving Party expressly undertakes to retain in confidence and not to disclose to any third party any such Confidential Information received from the Disclosing Party hereunder. Each Receiving Party further agrees to make no use of such Confidential Information except as necessary to exercise the rights or fulfill the obligations expressly granted under this Agreement. Each Receiving Party shall take reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent such Confidential Information from falling into the public domain or into the possession of any unauthorized person. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and legal or accounting advisors who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with such party which protects the Confidential Information of the Disclosing Party. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Disclosing Party’s Confidential Information. The Receiving Party agrees to assist the Disclosing Party in remedying such unauthorized use or disclosure of its Confidential Information.

10.2 Confidential Information shall not include information that: (a) was in the public domain at or subsequent to the time it was communicated to the Receiving Party by the Disclosing Party through no fault of the Receiving Party; (b) was rightfully in the Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to the Receiving Party by the Disclosing Party; (c) was developed by employees or agents of the Receiving Party independently of and without reference to any information communicated to the Receiving Party by the Disclosing Party; or (d) was communicated by the Disclosing Party to an unaffiliated third party free of any obligation of confidence.

11. GENERAL PROVISIONS.

 

11.1 This Agreement shall be governed by laws of the State of California, without giving effect to any conflicts of laws provisions that would require the application of the laws of a different state. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for the Northern District of California, San Jose Division, and the Superior and Municipal Courts of the State of California, Santa Clara County, in any litigation arising out of this Agreement.

11.2 Except as expressly provided herein, all rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other term.

11.3 Any notice or reports required or permitted to be given under this Agreement shall be given in writing and shall be delivered in person, facsimile transmission or by certified or registered mail, postage prepaid, return receipt requested, and shall be deemed given upon personal delivery, three (3) days after deposit in the mail or upon acknowledgment of receipt of facsimile transmission. Notices shall be sent to the individuals executing this Agreement at the addresses first set forth above or such other address as either party may specify in writing. No official notices under this Agreement may be sent via e-mail. Information sent via e-mail shall be for convenience only and shall be non-binding upon the receiving party.

11.4 Customer shall not assign, voluntarily, by operation of law, or otherwise, any rights, or delegate any duties, under this Agreement without Accredible’s prior written consent. Accredible may without Customer’s consent, assign all or any part of its rights and duties under this Agreement pursuant to a corporate reorganization, or to any entity with whom Accredible merges, which Accredible acquires or is acquired by, or to whom Accredible sells all or substantially all of its assets to which this Agreement relates. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

11.5 The parties are independent contractors and nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

11.6 Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of: (a) any provision of any present or future law or regulation of the United States or any applicable law that applies to the subject matter hereof; and (b) strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government action, acts of terrorism, earthquakes, power outages or any other cause which is beyond the reasonable control of such party.

11.7 If any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provisions shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

11.8 This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimiles shall be treated as originals.

11.9 The section headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.

11.10 This Agreement, including all Exhibits and any other attachments to this Agreement, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.