END-USER TERMS & CONDITIONS
[Version: January 26, 2021]
a. These End-User Terms & Conditions shall apply to any End-User of the Product Institute System and/or the Website, and use of the Product Institute System and/or the Website constitutes acceptance by End-User of the terms set forth herein.
b. Unless a certain Paragraph herein expressly states otherwise, these End-User Terms & Conditions shall apply to all Product Institute agreements, which incorporate these End-User Terms & Conditions by reference into such agreement, including but not limited to each type of License Agreement (e.g., the Click-Through Agreement, the MSA Agreement, and/or the Enterprise Agreement).
a. Capitalized terms are defined in the Glossary which can be located at the following URL: http://productinstitute.com/p/glossary.
3. TRIAL AND BETA SERVICES.
a. Product Institute may in its sole discretion offer trial services or beta services from time to time at no charge that are clearly marked as trial or beta and any such trial or beta services are provided “AS IS” with no warranties of any kind. Product Institute may discontinue any trial or beta services at any time, with or without notice and without any further obligation to any End-User. Product Institute will have no liability for any harm or damages suffered by any End-User or any third-party in connection with any trial or beta services.
4. THIRD-PARTY APPLICATIONS.
a. The Product Institute System may permit End-Users to access certain Third-Party Applications, however, Third-Party Applications are not part of the Product Institute System, and none of Product Institute’s warrantees or obligations shall extend to such Third-Party Applications.
b. The availability of any Third-Party Applications through the Product Institute System does not imply Product Institute’s endorsement of or affiliation with the provider. Product Institute does not control Third-Party Applications. Product Institute shall have no liability to End-Users or Client for, or in connection with, any Third-Party Application.
c. Product Institute has no obligation to monitor or maintain Third-Party Applications, and Product Institute in its commercially reasonable discretion may disable or restrict access to any Third-Party Applications at any time. By using or enabling any Third-Party Applications, each End-User expressly permits Product Institute to disclose End-User Data or other information to the extent necessary to utilize Third-Party Applications.
d. END USER’S USE OF THIRD-PARTY APPLICATIONS IS AT END USER’S OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY APPLICATION (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY APPLICATION).
5. END USER'S RESPONSIBILITIES
a. Access to Product Institute System. Each End-User's ability to use the Product Institute System is conditioned upon and will depend upon the End-User’s material performance of End-User's responsibilities as set forth in any agreement with the Product Institute, including but not limited to the License Agreement (including all terms incorporated therein). Access and/or use of some portions of the Product Institute System (e.g., such as the Library) by Client End-User will require executing and complying with the terms of a License Agreement
b. Account Information. Each End-User agrees to provide Product Institute with complete and accurate account information, including End-User's legal company name, street address, e-mail address, and such other contact information as may be requested by Product Institute. Each End-User is responsible for keeping End-User’s account information up to date, and each End-User agrees to promptly notify Product Institute in writing if any information changes.
c. Liability for Affiliates and Consumers. Each End-User is responsible for all activity occurring under its account. Each End-User shall not falsely register its account or falsely transmit any data relating to any other End-User or person by intentionally or recklessly using fictitious or incorrect data, and each Client shall take reasonable steps to ensure that its Students and any Client End-Users do not submit false, fictitious or incorrect information to the Product Institute System.
d. Client End-Users. Client will ensure that Client’s Affiliates, its Students (as well as those of its Affiliates) and Client End-Users, who are using the Product Institute System comply with all of the provisions of the License Agreement, these End-User Terms & Conditions and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Product Institute System. Any reference in the License Agreement to Client’s “access” or “use” of the Product Institute System or any Third-Party Application (or similar phrase) is deemed to include access or use by Affiliates of Client and/or Client End-Users, and any act or omission of an Affiliate or a Client End-User, which if undertaken by Client directly would be a breach of the License Agreement, will then be deemed to constitute a breach of the License Agreement by Client. Additionally, Client will take commercially reasonable steps to ensure that its Students and/or Client End-Users (including those of its Affiliates) comply with all provisions of the License Agreement, these End-User Terms & Conditions and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Product Institute System.
e. Restrictions on Use. Each End-User, who accesses or uses the Product Institute System, will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Product Institute System, including material that violates privacy rights; (ii) recklessly interfere with or disrupt the integrity or performance of the Product Institute System or the data contained therein; (iii) attempt to gain access to the Product Institute System or related systems or networks in a manner not permitted by the License Agreement or these End-User Terms & Conditions; (iv) post, transmit or otherwise make available through or in connection with the Product Institute System, any virus, worm, Trojan horse, Easter egg, time bomb, cookies, spyware or other harmful computer code, files, scripts agents or programs; (v) recklessly restrict or inhibit any other Person from using the Product Institute System; (vi) remove any copyright, trademark or other proprietary rights notice from the Product Institute System; (vii) frame or mirror any portion of the Product Institute System, or otherwise incorporate any portion of the Product Institute System into any product or service; (viii) systematically download and/or store any content related to the Product Institute System, other than any standard reporting made available to Client via the Product Institute System; or (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather content from the Product Institute System, or reproduce or circumvent the navigational structure or presentation of the Product Institute System.
g. PII – Consumer Names and Passwords. Client will ensure all PII, which has been provided by its Students and/or Client End-Users, is kept confidential. Product Institute may reject or require that any End-User change any user name or password under their account. User names and passwords are for internal business use only and may not be shared with any third party. Client and/or each End-User, but not Product Institute, is/are solely responsible for any use or misuse of user names or passwords associated with Client’s or End-User’s account.
h. Export Controls. Client and each End-User will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and Client and/or each End-User will not use the Product Institute System to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. Client and/or End-User represents and warrants to Product Institute that Client and/or End-User is not a prohibited Party or located in, under the control of, or a national or resident of any restricted country, and that Client and/or End-User will otherwise comply with all applicable export control laws. If Client and/or End-User resides outside the United States, then in addition to complying with the foregoing, Client and/or End-User will comply with any relevant export control laws in their respective local jurisdiction.
i. Third-Party Software Used by Client. Client is solely responsible (and shall hold Product Institute harmless) for using and/or maintaining any third-party software or application programming interfaces that Client uses in conjunction with or that it may use to interact with the Product Institute System.
6. INTELLECTUAL PROPERTY RIGHTS
a. Product Institute IP. Product Institute owns all rights or title to and interest in the Product Institute System, including but not limited to the Product Institute Marks and the Product Institute Data. Subject to the limited rights expressly granted to Client under any agreement (including the License Agreement), Product Institute reserves all rights, title and interest in and to (including without limitation all related intellectual property and moral rights) the Product Institute System, the Product Institute Marks and the Product Institute Data. Except as provided in the License Agreement, Client agrees not to display or use any Product Institute Marks in any manner without Product Institute’s express prior written permission. Any Service Marks and logos associated with a Third-Party Application may be the property of the third-party provider, and Client and any End-User should consult with their trademark guidelines before using any of their Service Marks.
b. Developed Features. All software or code used or developed by Product Institute (at any time), all Product Institute Data and the Product Institute System are and shall at all times remain the sole and exclusive property of Product Institute and are protected by applicable intellectual property laws and treaties, unless otherwise set forth in a writing mutually agreed to and signed by the Parties.
c. Restrictions. Client and/or End-User will not: (a) modify, copy or create any derivative works based on any portion of the Product Institute System; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise make any portion of the Product Institute System available to any third-party, other than as explicitly permitted herein; (c) reverse engineer or decompile any portion of the Product Institute System; (d) access or use (or allow a third-party to access or use) the Product Institute System for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Product Institute System; (f) otherwise use or exploit the Product Institute System in any manner not expressly permitted herein or by the License Agreement, or (g) allow any third parties to access or use the Product Institute System other than as explicitly authorized under the License Agreement.
a. Product Institute Data. Notwithstanding anything herein to the contrary, all right, title and interest in Product Institute Data will be solely owned by Product Institute.
c. Protection and Security Under the License Agreement. During the Subscription Term (as set forth in the License Agreement) and in accordance with applicable law and reasonable industry standards, Product Institute will maintain administrative, physical and technical safeguards designed for the protection and integrity of the Product Institute System, End-User Data and Personally Identifiable Information.
d. Unauthorized Disclosure. If any Party believes that there has been an unauthorized disclosure of End-User Data, Personally Identifiable Information or other data in a manner not authorized under the License Agreement, then such Party will notify the other Party as soon as commercially reasonable. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
e. Data-Related Disputes of Client under the License Agreement. Client is solely responsible for resolving disputes regarding ownership, use of or access to its systems or Client Software, including those involving any current or former owners, co-owners, employees or contractors of Client’s business. Client acknowledges and agrees that Product Institute has no obligation whatsoever to resolve or intervene in such disputes.
8. LIMITED WARRANTY UNDER THE LICENSE AGREEMENT.
The warranty provided under this paragraph only applies to the License Agreement, unless specifically provided for otherwise. Notwithstanding anything to the contrary, no warranty hereunder applies to the use of the Product Institute System if a License Agreement is not in effect – for instance, if End-User has not entered into a License Agreement (or if Client has not entered into a License Agreement on behalf of such End-User) then no warranty is provided hereunder. Similarly, if a License Agreement has been terminated or expired, then no warranty shall no longer apply hereunder.
a. Product Institute warrants to Client that during the Subscription Term the Product Institute System will (i) perform substantially in accordance with the functionality described in the documentation applicable to the Product Institute System; (ii) be compliant with all applicable law; and (iii) not be substantially and adversely diminished during the Subscription Term. For clarity, this warranty will not apply to any trial or beta services or any Third-Party Applications. Additionally, the preceding warranty will not prevent Product Institute from making upgrading or enhancing the Product Institute System or adding any additional Product Institute Data to the Product Institute System.
b. Product Institute will have no obligation with respect to a warranty claim under this Paragraph unless notified by Client in writing no later than thirty (30) days after the first instance of any material functionality problem.
c. The limited warranty under this Paragraph shall not apply and Product Institute shall not be responsible for any problem in the operation of the Product Institute System, including any problem that would otherwise be a breach of the warranty provided for in this Paragraph, which shall be deemed to be caused by any of the following: (i) changes in the operating characteristics of the internet (in general) or Client’s or End-User’s computer hardware, network(s), or operating systems, (ii) interaction of the Product Institute System with software not supplied or approved by Product Institute, (iii) any accident, abuse, or misapplication on behalf of Client or End-User, or (iv) the an occurrence of a Force Majeure Event. Additionally, the limited warranty under this Paragraph shall not apply if Client or End-User fails to use the Product Institute System in material accordance with the License Agreement and/or any applicable laws.
d. Client’s sole and exclusive remedy for a breach of this warranty will be that Product Institute will use commercially reasonable efforts to modify the applicable Product Institute System to achieve the functionality described above. If Product Institute is unable to restore such functionality within a reasonable amount of time, Client may terminate the License Agreement by providing written notice to Product Institute, and Client will be entitled to receive, and Product Institute shall promptly pay to Client, a pro-rata refund of any pre-paid fees (e.g., representing the period of time during which the Product Institute System failed to achieve the described functionality).
e. Notwithstanding the preceding, the warranty provided in this paragraph does not apply to service-level availability or uptime. The exclusive warranty and remedies with respect to service-level availability and uptime is set forth and governed by the Service Level Agreement.
f. All Product Institute Data is provided “as-is” without any warranty of any kind, whether express or implied. To the fullest extent permissible under the law, Product Institute disclaims all warranties with respect to Product Institute Data, express or implied, including implied warranties of merchantability and fitness for a particular purpose. Furthermore, all Product Institute Data is for informational purposes only. It is End-User’s sole responsibility to evaluate the accuracy, completeness, and usefulness of the Product Institute Data before utilizing the Product Institute Data. The Product Institute Data is neither intended as nor should be used as a substitute for competent advice of any type (e.g., it is not legal, medical or any other type of professional advice). End-User and/or Client understands and agrees its use of the Product Institute Data is at its sole risk and discretion, and End-User is solely responsible for determining whether or how to use the Product Institute Data. End-User acknowledges and agrees that all examples provided in connection with the Library (“Examples”) are provided as resources. The Examples are intended only as a starting point from which End-User may develop ideas, materials or templates, which are appropriate for it to use. It is End-User’s sole responsibility to evaluate the accuracy, completeness and usefulness of the Examples before utilizing the Examples. Before utilizing the Examples, End-User is strongly encouraged to obtain competent legal advice regarding the use of such Examples. End-User and/or Client understands and agrees that use of the Product Institute Data and/or Examples is at its sole risk and discretion and each End-User is solely responsible for determining whether or how to use the Product Institute Data and/or Examples.
g. Client and/or End-User understand that prior results do not guarantee a particular outcome, even if an outcome was successful in the past. Thus, the results obtained by others, who have applied the principles included in the Product Institute System, are no guarantee that End-user or any other Person will be able to obtain similar results.
h. EXCEPT AS EXPRESSLY PROVIDED IN THE LICENSE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT INSTITUTE SYSTEM AND/OR RELATED DOCUMENTATION. EXCEPT AS EXPRESSLY PROVIDED IN THE LICENSE AGREEMENT, PRODUCT INSTITUTE DOES NOT WARRANT THAT CLIENT’S OR END-USER’S USE OF THE PRODUCT INSTITUTE SYSTEM WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE PRODUCT INSTITUTE SYSTEM IS OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE PRODUCT INSTITUTE SYSTEM WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE PRODUCT INSTITUTE SYSTEM AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CLIENT’S OR END-USER’S LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY PROVIDED IN THE LICENSE AGREEMENT, THE PRODUCT INSTITUTE SYSTEM, ALL THIRD-PARTY APPLICATIONS AND/OR ALL THIRD PARTY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR CLIENT’S OR END-USER’S USE IN ACCORDANCE WITH THE LICENSE AGREEMENT AND/OR THESE END-USER TERMS & CONDITIONS. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS PARAGRAPH AND ELSEWHERE IN THE LICENSE AGREEMENT AND/OR THESE END-USER TERMS AND CONDITIONS) ARE MADE ON BEHALF OF ALL OF THE PRODUCT INSTITUTE PARTIES (SEE GLOSSARY FOR A DEFINITION OF “PRODUCT INSTITUTE PARTIES”).
9. LIMITATION OF LIABILITY
a. DISCLAIMER REGARDING TRANSMISSION OF INFORMATION. PRODUCT INSTITUTE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY, AND THE PARTIES AGREE THAT PRODUCT INSTITUTE WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF PERSONALLY IDENTIFIABLE INFORMATION PRIOR TO ITS ENCRYPTION AND/OR RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY PRODUCT INSTITUTE. THESE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
b. THIRD-PARTY APPLICATIONS AND THIRD-PARTY SERVICES. CLIENT AND/OR END-USER AGREE(S) TO HOLD PRODUCT INSTITUTE HARMLESS WITH RESPECT TO ANY CLAIMS ATTRIBUTABLE TO ANY THIRD-PARTY APPLICATION AND/OR ACTIVITIES OR SERVICES OF A THIRD PARTY PERFORMED ON BEHALF OF CLIENT AND/OR END-USER. FOR ANY DAMAGES ARISING FROM ANY THIRD-PARTY APPLICATIONS AND/OR SUCH ACTIVITIES OR SERVICES OF A THIRD PARTY, END-USER AND/OR CLIENT SHALL LOOK SOLELY TO THE PROVIDER OF SUCH THIRD-PARTY APPLICATIONS AND/OR THIRD PARTY SERVICES.
c. GENERAL LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS RELATED TO THE PROTECTION AND SECURITY OF PERSONALLY IDENTIFIABLE INFORMATION OR OBLIGATIONS TO INDEMNIFY THIRD PARTY CLAIMS (WHICH SHALL BE LIMITED TO A MAXIMUM OF $1 MILLION IN AGGREGATE LIABILITY TO PRODUCT INSTITUTE), TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PRODUCT INSTITUTE’S AGGREGATE LIABILITY COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE LICENSE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL FEES ACTUALLY RECEIVED BY PRODUCT INSTITUTE FROM CLIENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND AS PROVIDED HEREUNDER SHALL APPLY WITH RESPECT TO BOTH PRODUCT INSTITUTE AND ANY PRODUCT INSTITUTE PARTIES.
d. NO INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. IN NO EVENT WILL ANY PRODUCT INSTITUTE PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PRODUCT INSTITUTE SYSTEM OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PRODUCT INSTITUTE SYSTEM AS WELL AS ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION OF THE FOREGOING, EVEN IF PRODUCT INSTITUTE, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
e. Damages Related to Credit Card Processing. To the extent permitted by law, in the event that a third-party – regardless of whether such third-party is unrelated to Product Institute or is an Affiliate of Product Institute – provides payment processing (whether the processing is of a credit card, ACH payment or bank account payment) of transactions for the benefit of Client (“Payment Processor”), Client’s and/or End-User’s sole remedies for any damages arising from or related to payment processing of transactions – whether in contract, tort or otherwise – are with such Payment Processor and must be pursued with such Payment Processor according to the terms (if any) and/or legal remedies available between Client and Payment Processor. Accordingly, Client and/or End-User agrees to hold Product Institute harmless for any damages or Claims arising from or attributable to such Payment Processor.
f. STOPGAP. EXCEPT FOR INSTANCES OF RECKLESS ACTION OR INACTION OR INTENTIONAL MISCONDUCT, AND IN ADDITION TO ALL OF THE OTHER LIMITATIONS SET FORTH IN THIS PARAGRAPH 9, IN NO EVENT SHALL PRODUCT INSTITUTE’S AGGREGATE LIABILITY – WHETHER IN CONTRACT, TORT OR OTHERWISE – EXCEED THE SUM OF $1 MILLION.
i. To the maximum extent permitted by applicable law, Client agrees to hold harmless, and indemnify any Product Institute Party from and against any Client Indemnifiable Damages.
ii. To the maximum extent permitted by applicable law, each End-User agrees to hold harmless, and indemnify any Product Institute Party from and against any End-User Indemnifiable Damages.
b. IP Infringement.
i. Client shall hold harmless Product Institute from and against any claims that Product Institute infringes or misappropriates, as applicable, the patent, trademark, copyright, trade secret or other intellectual property right of a third-party. In the event that such a claim is made or appears possible, then Client’s sole recourse is that Product Institute may, at its option (A) appropriately modify its systems, software or services so that they become non-infringing, or substitute functionally equivalent software, systems or services; or (B) obtain a license to the applicable third-party intellectual property rights so that Client may continue to use the Product Institute System in accordance with the License Agreement.
ii. End-User shall hold harmless Product Institute from and against any claims that Product Institute infringes or misappropriates, as applicable, the patent, trademark, copyright, trade secret or other intellectual property right of a third-party. In the event that such a claim is made or appears possible, then End-User’s sole recourse is that Product Institute may, at its option (A) appropriately modify its systems, software or services so that they become non-infringing, or substitute functionally equivalent software, systems or services; or (B) obtain a license to the applicable third-party intellectual property rights so that End-User may continue to use the Product Institute System in accordance with the License Agreement.
c. Notification. If Client or End-User becomes aware of a claim or cause of action that could result in Claims against Product Institute Party, then such Client or End-User shall provide prompt notice of such Claims to Product Institute.
d. Defensive of Claims by Client or End-User.
i. Client shall defend, indemnify, and hold harmless Product Institute, and Product Institute Parties from and against any Claims arising or attributable to Client’s breach of the provisions in the License Agreement with respect to intellectual property (including any moral rights) or Confidential Information.
ii. End-User shall defend, indemnify, and hold harmless Product Institute, and Product Institute Parties from and against any Claims arising or attributable to End-User’s breach of the provisions in the License Agreement with respect to intellectual property (including any moral rights) or Confidential Information.
11. CONFIDENTIALITY UNDER THE LICENSE AGREEMENT
The confidentiality provisions as provided under this paragraph shall apply to Client and/or End-User, provided however, that if Client or End-User and Product Institute has entered into a Separate Confidentiality Agreement in the past or enters into a Separate Confidentiality Agreement in the future, then to the extent any terms of this paragraph are in conflict with the terms of such Separate Confidentiality Agreement, then the terms of such Separate Confidentiality Agreement will control and the terms of this paragraph shall be interpreted to supplement the terms of any such Separate Confidentiality Agreement where they do not conflict.
a. A Party will not disclose or use any Confidential Information of the other Party except:
i. as reasonably necessary to perform its obligations or exercise any rights granted pursuant to either the License Agreement and/or these End-User Terms & Conditions;
ii. with the other Party's prior written permission; or
iii. to the extent required by law or order of a court or other governmental authority or regulation.
b. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care.
c. For marketing and/or promotional purposes, Product Institute is entitled to (i) indicate that it is providing or has provided services to Client, and (ii) use Client’s Service Marks in connection with such marketing and/or promotional purposes.
12. ILLEGAL USE
a. Product Institute’s servers and/or the Product Institute System shall be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
13. SERVER RESOURCES
Any attempts to undermine or cause harm to the Product Institute System, a Product Institute server and/or any Person are strictly prohibited.
14. INSURANCE REQUIRED OF THE PARTIES UNDER THE LICENSE AGREEMENT
The terms of this paragraph shall apply only to Client (and not to specific individual End-Users).
a. Product Institute and Client shall each maintain during the Term of the License Agreement (at their own respective expense) commercial general liability insurance, errors and omissions insurance, contractual liability insurance, and cyber liability insurance, in each case with a minimum limit of $1,000,000 per occurrence and $2,000,000 in the aggregate.
b. Cyber liability insurance shall be on an “occurrence form” and shall include ”contractual liability” insurance for the indemnity provided under these End-User Terms & Conditions, and coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by End-User hereunder and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security ( each a “Cyber Liability Claim”). The policy shall also provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. Client shall look solely to its insurer for recovery of any loss related to a Cyber Liability Claim and hereby waives any and all claims or right to recovery for such loss against Product Institute.
15. MISCELLANEOUS PROVISIONS
a. Complete Agreement:
i. This subparagraph 15.a.i applies only to Client if Client has entered into a Click-Through Agreement. For clarity, this subparagraph 15.a does not apply to any End-User and does not apply to Client if Client has entered into a MSA, or Enterprise Agreement. If Client has entered into a MSA, or Enterprise Agreement, then a similar provision titled, “Complete Agreement,” will be directly set forth in the License Terms for the MSA Agreement, and/or Enterprise Agreement. The License Terms together with these End-User Terms & Conditions and any other document, which is incorporated into the License Agreement by reference, constitutes the sole and entire agreement between the Parties and supersedes all prior understandings, agreements and documentation relating to such subject matter. The terms of any document incorporated by reference into the License Agreement (including these End-User Terms & Conditions) shall be construed to supplement the terms of the License Agreement. However, in the event of a direct conflict between the provisions of the License Agreement and any document incorporated by reference, the following hierarchy shall be followed (in ascending order) to resolve such direct conflicts, unless explicitly stated otherwise in the License Agreement:
1. these End-User Terms & Conditions shall take precedence over the License Terms, then
3. the SLA shall take precedence over any of the preceding documents, then
4. the Glossary shall take precedence over any of the preceding documents, then
5. any written rider or written amendment that is executed by the Parties, which specifically states that it takes precedence over the above documents shall take precedence as so indicated.
ii. This subparagraph 15.a.ii applies only to End-User, including any Client End-User (and does not apply to any Client).These End-User Terms & Conditions and any other document, which is incorporated herein by reference, constitutes the sole and entire agreement between the Parties and supersedes all prior understandings, agreements and documentation relating to such subject matter. The terms of any document incorporated by reference into these End-User Terms & Conditions shall be construed to supplement the terms of these End-User Terms & Conditions. However, in the event of a direct conflict between the provisions of these End-User Terms & Conditions and any document incorporated by reference, the following hierarchy shall be followed (in ascending order) to resolve such direct conflicts:
2. the SLA shall take precedence over any of the preceding documents, then
3. the Glossary shall take precedence over any of the preceding documents, then
4. any written rider or written amendment that is executed by the Product Institute and an End-User, which specifically states that it takes precedence over the above documents shall take precedence as so indicated.
1. Any such modification shall become immediately binding if such change (x) is implemented to comply with any changes in the law or requirements by any regulatory or administrative authority, (y) do not create exposure or risk to Client, or (z) Client consents in writing.
2. All other modifications (other than as provided for in the preceding subparagraph 15.b.i.1) shall become binding upon renewal of the License Agreement. Client acknowledges and agrees that it is Client’s responsibility to read, understand and agree to the latest version of any policies or incorporated terms upon a renewal of the License Agreement for an additional Subscription Term.
c. Law & Enforcement Issues. The License Agreement, these End-User Terms & Conditions, any document incorporated into either of the same and the relationship between the respective Parties thereto shall be governed by the laws of the State of New York without regard to its conflict of law provisions. Each Party to the License Agreement and each End-User agrees to submit to the personal jurisdiction of the courts located within the county of New York, NY. The prevailing party in any lawsuit or legal proceeding shall be entitled to receive reimbursement from the other party for any and all costs (including attorney fees) attributable to enforcement of its rights hereunder in such lawsuit or legal proceeding. All disputes in connection with the License Agreement and/or these End-User Terms & Conditions (including any document incorporated into the same) shall be brought in the state or federal courts in the Borough of Manhattan, New York.
d. Notices: All notices and other communications given in connection with the License Agreement and/or these End-User Terms & Conditions shall be in writing and delivered via email. All notices to Product Institute shall be sent to [email protected] Institute.com. All notices to Client and/or End-User shall be to the email address as supplied by Client and/or End-User or that Product Institute has on file for Client and/or End-User. Client and/or End-User hereby consents to receive notice from Product Institute through email, and such notice will be deemed to be effective when sent if on a business day, and if not sent on a business day, then on the next business day.
e. Relationship of the Parties. Notwithstanding any to the contrary, for all purposes of the License Agreement and/or these End-User Terms & Conditions, each Party shall be and act independently (e.g. and be considered independent contractors with respect to each other) and not as partner, joint venturer, agent, employee or employer of the other. None of the Parties with respect to the License Agreement and/or these End-User Terms & Conditions shall have any authority to assume or create any obligation for or on behalf of the other Party thereto, express or implied, and neither Party thereto shall attempt to bind the other Party to any agreement or contract.
f. Assignment: The rights and obligations under the License Agreement and/or these End-User Terms & Conditions are not assignable by either Party thereto without the written and signed consent of the other Party thereto. Notwithstanding the foregoing, either Party of the License Agreement is permitted to assign such agreement -- without consent but upon written notice to the other Party -- to an Affiliate or to a third-party only in connection with a merger, acquisition, or sale of all or substantially all of its equity or assets.
g. Successors and Assigns: The License Agreement and/or these End-User Terms & Conditions binds and benefits the heirs, successors and assigns of the respective Parties thereto.
h. Invalidity of Specific Terms. If any provision of these End-User Terms & Conditions, the License Agreement and/or any document incorporated into the same is found by a court of competent jurisdiction to be invalid or unenforceable, the Parties with respect to each such agreement and/or document nevertheless agree that the court should endeavor to give effect to the Parties' intentions as reflected in such provision and that the other provisions of such agreement or document remain in full force and effect to the maximum extent possible.
i. Mutual Representations and Warranties. Notwithstanding anything in the License Agreement to the contrary, each Party thereto represents and warrants to the other Party thereto that they each have: (a) all requisite legal and corporate power to execute and deliver the License Agreement; (b) taken all corporate action necessary for the authorization, execution and delivery of the License Agreement; (c) no agreement or understanding with any Person that interferes with or will interfere with the performance of their respective obligations under the License Agreement; (d) obtained and shall maintain all rights, approvals and consents necessary to perform their respective obligations under the License Agreement ; and (e) taken all action required or necessary to make such agreements legal, valid and binding obligations upon them.
j. Force Majeure: Except for a delay or failure to make any payments due under the License Agreement, a Party shall be excused from any of its obligations under the License Agreement upon the occurrence of a Force Majeure Event, provided however, that each Party will endeavor to use commercially reasonable efforts to perform their obligations thereunder after the occurrence of a Force Majeure Event.
k. Electronic Communications and Signatures. The Parties agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Product Institute System. The words “execution,” “signed,” “signature,” and words of like import in document shall be deemed to include electronic signatures as well as clicking through on a web page to convey an acceptance of terms and/or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based record keeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
l. Furthermore, the Parties hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law. The License Agreement may be signed or executed by the Parties thereto in counterparts which together shall constitute one and the same agreement among the Parties.
m. Waiver. No waiver of any provision of the License Agreement and/or these End-User Terms & Conditions by a Party will be effective unless in writing and signed by such Party. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Accordingly, a Party’s failure to exercise or enforce any right or provision of the License Agreement and/or these End-User Terms & Conditions shall not constitute a waiver of such right or provision.
n. Miscellaneous. The Paragraph headings and subheadings contained in the License Agreement and/or these End-User Terms & Conditions are included for convenience only, and shall not limit or otherwise affect the terms of such agreement. Any construction or interpretation to be made of the terms contained within the License Agreement and/or these End-User Terms & Conditions shall not be construed against the drafter.
o. Survival. The obligations and rights under these End-User Terms & Conditions that are intended to apply after termination of either the License Agreement and/ these End-User Terms & Conditions shall continue to survive and apply after termination of the same, including but not limited to paragraphs 6, 7, 8, 9, 10, 11, 12 and 15. Additionally, the obligations and rights under the License Agreement that are intended to apply after termination of the License Agreement shall continue to survive and apply after termination of the same.