Terms and Conditions
BRAND LEADERSHIP INSTITUTE LICENSE AGREEMENT
Welcome to the Brand Leadership Institute’s Platform License Agreement (the "Agreement").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PLATFORM. THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE PLATFORM (AS DEFINED BELOW), UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE'RE ONLY WILLING TO LICENSE THE PLATFORM TO YOU IF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY ENROLLING IN AND USING THE PLATFORM YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON'T HAVE SUCH AUTHORITY, OR IF YOU DON'T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE PLATFORM TO YOU, AND YOU MAY NOT ENROLL OR USE IT.
- Definitions. Here are some definitions we use in this Agreement. If you see a capitalized word that isn't listed here, it will be defined somewhere in the Agreement.
The "Agreement Effective Date" is the earlier of the date that you accept the terms and conditions of this Agreement, or that you first place an order for access to our Platform and/or other Services.
"Documentation" means any manuals, documentation and other supporting materials related to the Platform that we generally provide to our customers. Documentation is considered part of the Platform.
"Fees" means both: (i) the fees you're required to pay us to use the Platform during the applicable License Term, as such fees are reflected on each applicable SOW/Order Form; and (ii) the fees you're required to pay us for any Services you engage us to perform, as such fees are reflected on each applicable SOW.
"License Key" means a data file utilized by the Platform's access control mechanism that allows you to use the Platform during the License Term.
"License Term" means one (1) year or the term period set forth in the applicable SOW/Order Form and commencing on the Effective Date set forth in such applicable SOW/Order Form.
The "SOW/Order Form" is a written or electronic form that we'll give you to order access to the Platform (or that we'll use to order access to the platform on your behalf, once we've gotten your authorization). Upon execution by the parties (or, in the case of an electronic orders, confirmation and placement of the order), each SOW/Order Form will be subject to the terms and conditions of this Agreement.
The "Order Effective Date" is the effective date of each SOW/Order Form.
"Seats" mean the number of User accounts for the Platform that you're authorized to create. The number of Seats is specified in the applicable SOW/Order Form. Only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat.
"Services" means training, consulting, or implementation services that we provide to you pursuant to a mutually executed Statement of Work. Services do not include support.
"Platform" means the content and medium in which the content is displayed. Platform includes any applicable Documentation, as well as any Updates to the Platform that we provide you or that you can access under this Agreement.
"Statement of Work" or "SOW" means a mutually executed statement of work detailing the Services we'll perform for you, their price, and your related obligations (if any).
A "User" is a single person or machine account that initiates the execution of the Platform and/or interacts with or directs the Platform in the performance of its functions. The number of Users shouldn't exceed the number of Seats you've licensed from us.
- License Grant. Subject to your compliance with the terms of this Agreement (including, among other things, paying the Fees you owe us), we hereby grant you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to install, execute, and use a single production instance of the Platform for your internal business purposes during the applicable License Term, in accordance with the Documentation, and only for the number of Seats that you've paid for. You can make copies of the materials for non-production purposes only, provided that you reproduce all copyright and other proprietary notices that are on the original copy of the materials.
- Restrictions. We license the Platform to you – we don’t sell it. As between us, we own all right, title and interest in and to the Platform, and any intellectual property rights associated with it and with our company. We reserve all rights in and to the Platform that we don’t expressly grant you in this Agreement. You agree not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Platform to third parties; (ii) host the Platform for the benefit of third parties; (iii) disclose or permit any third party to access the Platform, except as expressly permitted in Section 2, above; (iv) hack or modify the License Key, or try to avoid or change any license registration process we may implement; (v) modify or create derivative works of the Platform, or merge the Platform with other software; (vi) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Platform or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by this Agreement, by law, or by applicable license notwithstanding this prohibition; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Platform or Documentation; (viii) otherwise use or copy the Platform in a manner not expressly permitted by this Agreement; or (ix) use any Platform that we license to you beyond its applicable License Term.
- Seats. Remember, only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat, and only one human being can be associated with a particular User account. If you want to swap out, delete, or suspend a User, you can do that, and then assign a new User to the open Seat. If you find that you need more Seats, that's great – we're here to help! Just submit a new request through our website or via our sales team, and pay for the additional Seats (a new SOW/Order Form will be generated). If and when you add additional Seats to your subscription, you'll pay Fees for those seats at the then-current price, prorated for the balance of the applicable License Term. When the time comes to renew your Seats for another year-long License Term, we'll invoice you for all of your Seats at once, at the then-current price (we reserve the right to change our prices at any time, but the new prices won't affect you until it's time to renew your license for another year). You agree that any orders that you make (or that you authorize us to make on your behalf) for additional Seats during the term of this Agreement will be governed by this Agreement.
- Verification. From time to time, we may have reason to make sure that you're not using extra Seats without paying for them. You agree to cooperate with us to achieve that goal. To help us verify the number of Seats you're actually using, you agree to promptly give us any usage files and reports that your instance of the Platform generates, if and when we ask for them. We might also (or instead) ask one of your officers to certify the number of Seats that you're actually using. You agree to provide such a certification if we ask for it. If we determine that you're using more Seats than you've paid for, in addition to any other remedies we might have at law or in equity, you agree to pay us the then-current Fees for the additional Seats you're using, starting from the date you began using each Seat.
- Government Users. No technical data or computer Platform is developed under this Agreement. The Platform and Documentation have been developed solely with private funds, and are considered "Commercial Computer Software" and "Commercial Computer Software Documentation" as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and are licensed to the to the U.S. Government end user as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Platform or Documentation by the U.S. Government or its contractors is subject to the restrictions set forth in this Agreement.
- Delivery. Promptly after the applicable Order Effective Date, we'll make the Platform and the License Key available for you to download on a secure, password-protected website. As Updates become available, we'll make those available for you to download on the same website. You're responsible for maintaining the confidentiality of all of your usernames and passwords. You agree that you'll be responsible for any activity that takes place using your usernames and passwords (whether you knew about it or not).
- Term and Termination.
8.1 Term. This Agreement starts on the Agreement Effective Date and will continue in effect for the License Term (the "Initial Term"), at which time, so long as you choose to renew your Platform license for additional License Term(s) (each, a "Renewal Term"), this Agreement will continue in effect for additional License Terms as set forth in the applicable SOW/Order Form unless or until this Agreement is either terminated by a party or expires in accordance with this Section 9. We’ll notify you at least sixty (60) days before the end of the Initial Term and each Renewal Term that it’s time for you to renew your Platform license. We'll generate a new SOW/Order Form for renewal, and will provide a new License Key for you to download that will allow your continued use of the Platform for another License Term.
8.2 Termination for Convenience; Automatic Expiration. Either of us can terminate this Agreement for our convenience at the end of the Initial Term and each Renewal Term by providing written notice to the other at least thirty (30) days before the end of the Initial Term and each Renewal Term. This Agreement will automatically expire without the requirement of notice if, at the end of the Initial Term and each Renewal Term, you decide not to pay the Fees required to renew your Seats for an additional License Term.
8.3 Termination for Breach. We can terminate this Agreement immediately upon notice to you if you breach any part of it, and you fail to cure the breach within thirty (30) days of us notifying you of it. That said, there are certain kinds of breaches that we take much more seriously, and that can really damage us. We therefore reserve the right to terminate this Agreement immediately upon written notice to you, but without giving you a cure period, if you breach any of the terms of this Agreement relating to our intellectual property (including your compliance with the license grant and any license restrictions) or our Confidential Information (defined below).
8.4 Effect of Termination. When this Agreement terminates or expires: (i) the License Term for any materials related to the Platform in your possession will immediately end, and any outstanding SOWs will immediately terminate; (ii) you'll no longer have the right to use the Platform, and any licenses we grant you in this Agreement will automatically cease to exist as of the date of termination/expiration; (iii) if you owed us any money prior to termination/expiration, you'll need to pay us all that money immediately; (iv) you'll destroy all copies of the material related to the Platform in your possession or control, and certify in writing to us that you've done so; and (v) each of us will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other.. Sections 1, 3, 5, 6, 8, 8.2, 8.3, 8.4, 9, 10.2, and 13-17 will survive the termination or expiration of this Agreement for any reason.
- Payment. You agree to pay the Fees to us in full, without deduction or setoff of any kind, in U.S. Dollars (unless the SOW/Order Form says otherwise), within 30 days of the date of the invoice we send you related to the applicable SOW or Order Form. Amounts payable under this Agreement are nonrefundable, except as provided in Section 10.1. If you don't pay us on time, we reserve the right, in addition to taking any other action that we see fit, to charge you interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to additionally charge all expenses of recovery. You are solely responsible for all taxes, fees, duties and governmental assessments that are imposed or become due in connection with the subject matter of this Agreement.
- Limited Warranties
10.1 Limited Warranties. We offer you (and only you) the following limited warranties: (i) that the unmodified Platform, at the time we make it available to you, will not contain or transmit any malware, viruses, or worms (otherwise known as computer code or other technology specifically designed to disrupt, disable, or harm your software, hardware, computer system, or network); (ii) that any Services we perform for you under this Agreement will be performed in a good and workmanlike manner, by appropriately qualified personnel (you just need to let us know about a problem within thirty (30) days of the date the Services were performed); and (iii) that, for ninety (90) days from the date the Platform is made available for access, the unmodified Platform will substantially conform to its Documentation. We don't warrant that your use of the Platform will be uninterrupted, or that the operation of the Platform will be error-free. These warranties won't apply if you modify the Platform, or if you use the Platform in any way that isn't expressly permitted by this Agreement and the Documentation. Our only obligation, and your only remedy, for any breach of these limited warranties will be, at our option and expense, to either (i) repair the Platform; (ii) replace the Platform; or (iii) terminate this Agreement with respect to the defective Platform, and refund the Fees you've paid for the defective Platform during the then-current License Term.
10.2 Disclaimer. THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH RESPECT TO THE PLATFORM AND SERVICES. WE DON'T MAKE ANY OTHER WARRANTIES, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU GET FROM US OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
- LIMITATION OF LIABILITY.
11.1 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE'VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Limitation of Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU'VE ACTUALLY PAID US DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
11.3 Basis of Bargain. You understand and agree that we've set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in this Agreement, which allocate risk between us and form the basis of a bargain between the parties.
12.1 Our Indemnification Obligation. We'll defend or settle, at our option and expense, any third-party claim brought against you to the extent that it's based on an allegation that your use of the Platform as permitted under this Agreement infringes a copyright or misappropriates a trade secret of any third party (each, a "Claim"), and, subject to Section 13, we'll pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that you notify us in writing of any such Claim as soon as reasonably practicable and allow us to control, and reasonably cooperate with us in the defense of, any such Claim and related settlement negotiations.
12.2 Exclusions. You understand that we'll have no obligation to indemnify you for any Claim that's based on (i) the modification of the Platform, unless we were the ones who made the modifications; (ii) your use of the Platform other than as authorized by this Agreement and the Documentation; (iii) your failure to use updated or modified Platform that we make available to you that would have helped avoid or mitigate the Claim; (iv) your failure to stop using the Platform after receiving written notice to do so from us in order to avoid further infringement or misappropriation; or (v) the combination, operation or use of the Platform with equipment, devices, software, systems, or data that we didn't supply (subparts (i)-(v) may be referred to collectively as "Indemnity Exclusions").
12.3 Right to Ameliorate Damages. If your use of the Platform is, or in our reasonable opinion is likely to be, subject to a Claim under Section 14.1, we may, at our sole option and at no charge to you (and in addition to our indemnity obligation to you in Section 12.1): (i) procure for you the right to continue using the Platform; (ii) replace or modify the Platform so that it is non-infringing and substantially equivalent in function to the original Platform; or (iii) if options (i) and (ii) above are not commercially practicable in our reasonable estimation, we can terminate this Agreement and all licenses granted hereunder (in which event, you will immediately stop using the Platform) and refund the Fees that you paid us for the then-current License Term.
12.4 Sole Remedy. THIS SECTION 12 SETS FORTH OUR SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
12.5 Your Indemnification Obligation. Because we can't know what you're doing with the Platform behind your firewall, except to the extent that we're obliged to indemnify you in Section 12.1 above, you will defend, indemnify, and hold us harmless from and against any claims that may arise out of or that are based upon (i) your breach of this Agreement; (ii) content that you upload to the Platform; or (iii) an Indemnity Exclusion.
13.1 Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" means any business or technical information that either one of us discloses to the other, in writing, orally, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of this Agreement, except as expressly set forth in Section 13.2 below, the source code of our Platform will be deemed to be Velvet Suite’s Confidential Information, regardless of whether it is marked as such.
13.2 Restrictions on Use and Disclosure. Neither of us will use the other party's Confidential Information, except as permitted under this Agreement. Each of us agrees to maintain in confidence and protect the other party's Confidential Information using at least the same degree of care as we use for its own information of a similar nature, but in all events at least a reasonable degree of care. Each of us agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other's Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, "Representatives") (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 15, and (iii) who are informed of the nondisclosure obligations imposed by this Section 15. Each of us will be responsible for all acts and omissions of our Representatives. The foregoing obligations won't restrict either of us from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 15 will survive the termination or expiration of this Agreement.
13.3 Exclusions. The restrictions set forth in Section 15.2 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party's Confidential Information.
- Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Virginia, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under, related to or connected with this Agreement will be brought exclusively in the federal (if they have jurisdiction) or state courts located in Reston, Virginia and the parties irrevocably consent to the personal jurisdiction and venue there.
15.1 Assignment. You aren't allowed to assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void. We can assign this Agreement in its entirety, upon notice to you but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.
15.2 Availability of Source Code. The Platform includes and is distributed with certain open-source components whose licenses require us to make the source code for those components available. The source code for such components will be provided upon request.
15.3 Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.
15.4 Notices. Any notice, request, demand or other communication required or permitted under this Agreement should be in writing (e-mail counts), should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth on the Invoice, unless we notify each other that those addresses have changed.
15.5 Waiver. A party's obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.6 Force Majeure. We will be excused from performing under this Agreement to the extent that we're unable to perform due extraordinary causes beyond our reasonable control. That might include things like acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.
15.7 Independent Contractors. We're each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.
15.8 Amendments; Entire Agreement. No modification, change, or amendment of this Agreement will be binding upon the parties, unless we both agree to the change in a writing signed by each of our authorized representatives. This Agreement, including each Order Form and SOW, constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter.
15.10 No Publicity Without Your Permission. We may identify you as a customer to current and prospective clients. We won't use your name or logo in any advertising or marketing materials without your permission.