Curricula Group, Inc. Terms of Service
This Terms of Service agreement (the “Agreement”) is a binding agreement between the party identified as the customer on the Order (“Customer”) and Curricula Group, Inc., a Delaware Corporation (“Curricula”). This Agreement governs the relationship between Customer and Curricula and the license and access rights to the Services, Software, Subscriptions (as defined herein) and website provided by Curricula. Throughout this Agreement, Customer and Curricula may each be referred to as a “Party” or collectively, the “Parties”.
PLEASE READ CAREFULLY
BY CLICKING THE “ACCEPT” BUTTON, CHECKING THE APPROPRIATE BOX TO ACCEPT THIS TERMS OF SERVICE AGREEMENT, OR BY ACCESSING OR USING CURRICULA SOFTWARE, SUBSCRIPTIONS OR SERVICES YOU THEREBY ACCEPT THIS TERMS OF SERVICE AGREEMENT AND AGREE THAT YOUR ARE LEGALLY BOUND BY THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF AN ORDER FOR THE SOFTWARE, SUBSCRIPTIONS AND/OR SERVICES CONSTITUTES AN ACCEPTANCE OF THIS AGREEMENT.
IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF A BUSINESS OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH BUSINESS OR OTHER ENTITY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF SUCH BUSINESS OR OTHER ENTITY.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE BUSINESS OR OTHER ENTITY YOU REPRESENT, DO NOT CLICK ON THE BUTTON, DO NOT ACCEPT, AND DO NOT ACCESS OR OTHERWISE USE THE SOFTWARE, SUBSCRIPTION AND/OR SERVICES.
CHANGES TO THIS AGREEMENT
Curricula reserves the exclusive right to make changes to this Agreement from time to time. The continued access to and use of the Software and Services constitutes Customer’s agreement to be bound by the terms and conditions of the Agreement posted at such time. Customer acknowledges and agrees that it accepts this Agreement (and any amendments thereto) each time it and/or one of its Authorized Users sign into its Curricula Account, accesses, or uses the Software or Services. Therefore, Curricula encourages Customer to review this Agreement regularly.
If, within thirty (30) days of Curricula posting changes or amendments to this Agreement, Customer decides that it does not agree to the updated terms, Customer may withdraw its acceptance to the amended terms by providing Curricula with written notice of its withdrawal from this Agreement to the email address provided in Section XII(B) herein. Upon providing Curricula with the written notice of the withdrawal of its acceptance, neither Customer nor its Authorized Users are shall be authorized to access or use the Software or Services.
I. DEFINITIONS.
“Aggregate Data” has the meaning set forth in Section VIII(B).
“Authorized Users” means the final user who (a) is a physical person; (b) is an officer, employee, agent, sub-contractor, consultant or representative of Customer; and (c) has been authorized by Customer to access and use the Software or Services by Customer through its relationship with Customer. All terms, conditions, obligations, and restrictions of the Customer in connection with the use of the Software and Services shall apply to the Customer’s Authorized Users.
“Confidential Information” means any non-public, confidential, or proprietary information of a Party that is or should reasonably be understood by the receiving Party to be confidential because of (i) legends or other markings; (ii) the circumstances of disclosure; or (iii) the nature of the information, which may be disclosed either directly or indirectly, in writing, visual, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, products, software, product specifications and white papers) or other means. Confidential Information includes but is not limited to technology and technical information, promotional and marketing activities, inventions, finances and financial plans, customers, business and product plans, know-how, source code, data, algorithms, methods and processes, trade secrets, designs, techniques, analyses, models, strategies and objectives, and any third-party information that a Party is otherwise obligated to keep confidential.
“Cure Period” has the meaning set forth in Section V(B).
“Curricula Account” has the meaning set forth in Section IV(A).
“Curricula IP” means all Curricula proprietary materials, including without limitation, the Software, Subscriptions, Curricula’s Confidential Information, Aggregate Data, Documentation, proprietary processes and methods, and any Curricula templates and/or forms.
“Customer Marks” means Customer’s name and logo, the names of any of Customer’s websites, other names of Customer’s business, enterprises or properties, product marks, trademarks and any other registered intellectual property of Customer.
“Customer Data” means the information submitted or provided by Customer and its Authorized Users for use with the Software and Services.
“Discloser” means the Party that is disclosing Confidential Information to the other Party.
“Documentation” means the applicable Software and Subscription user and information manuals provided by Curricula to its customers in hard copy or in electronic form including, without limitation, blogs and downloads available on Curricula websites, as amended from time to time by Curricula.
“Effective Date” means the date upon which Curricula first provides a Subscription to Customer under this Agreement and pursuant to an Order.
“Evaluation Period” has the meaning set forth in Section III(B).
“Evaluation Product” has the meaning set forth in Section III(B).
“Feedback” has the meaning set forth in Section VIII(B).
“Fees” has the meaning set forth in Section VI(A).
“Indemnified Party” has the meaning set forth in Section X(D).
“Indemnifying Party” has the meaning set forth in Section X(D).
“Initial Subscription Term” has the meaning set forth in Section V(A).
“Intellectual Property Rights“ means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, together with the goodwill associated therewith, derivative works, and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
“Order“ means an electronic agreement issued to Customer by Curricula providing the pricing terms and subscription Fees for the Curricula Services, under which Customer agrees to purchase Services. The Order will contain details on Customer information, Price for the Service, Number of Employees, Effective Date, and other relevant contract details. It is agreed that all Orders for the Services hereunder will incorporate the terms of this Agreement, whether expressly referenced or not, and will only be accepted subject to the terms of this Agreement. The terms and conditions of this Agreement will govern all Orders, and any additional or different terms in an Order are deemed void and of no effect unless such additional or different terms are agreed upon by the Parties in writing. For clarity, acceptance by Curricula of a Customer’s purchase order or similar ordering document will not be deemed an acceptance of any conflicting or additional terms and conditions.
“Recipient” means the Party that receives Confidential Information from the other Party.
“Renewal Subscription Term” has the meaning set forth in Section V(A).
“Software” means the underlying software and Software as a Service (SaaS) platform through which Curricula provides Services and to which the Customer obtains license through Subscriptions Services.
“Service(s)” means subscription-based online phishing awareness simulator, cyber security awareness training, and all related content, software, media, and Documentation which are accessed and used via Curricula’s publicly-available website located at www.curricula.com , associated subdomains, or via www.MyCurricula.com .
“Subscription” means the Software subscription whereby Curricula provides Services.
“Subscription Term” has the meaning set forth in Section V(A).
“Taxes” has the meaning set forth in Section VI(A).
II. DESCRIPTION OF SERVICES
A. Phishing Simulator. Curricula’s phishing simulator simulates real-world phishing attacks by sending real-world emails to Customer’s email system then trains Customer’s personnel on effective methods of defending against them utilizing a web-based step-by-step phishing defense guide.
B. Cyber Security Awareness Training. Curricula’s cyber security awareness training educates Customer’s personnel about various cyber threats through the provision of short relatable security stories that are delivered to Customer’s personnel electronically. Based on insights gained from employee behavior, Curricula will provide infographics and analytics gauging Customer’s human risk profile and tracking the effectiveness of Curricula Services. The Services provide access to additional downloadable content, as well as variety of additional compliance related courses to train employees. The Services may also be authorized to utilize in the Customer’s Learning Management System (“LMS”) to deliver training content.
C. License to Software. Subject to and conditioned upon Customer’s payment of the applicable Fees set forth in the Order and Customer’s (and its Authorized Users’) compliance with all terms and conditions set forth in this Agreement, Curricula hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to utilize the Software, solely (i) in connection with Curricula’s Services; (ii) for Customer’s internal business purposes (and not distribution or re-sale); (iii) through Customer’s Authorized Users; and (iv) for the duration of the Subscription Term.
III. PROVISION OF SOFTWARE AND SERVICES; CUSTOMER RESPONSIBILITIES.
A. Orders. Curricula will provide the Services set forth in Orders, as applicable, pursuant and subject to this Agreement. Terms and licenses specific to the Software and Services are set forth in the herein.
B. Evaluations. If Curricula provides demo access to any Software or Subscriptions, along with any other related materials and documentation for Customer’s evaluation purposes (collectively, “Evaluation Products”), then Curricula grants Customer a limited, nontransferable, non-assignable, non-sublicensable right to use the Evaluation Product listed in the applicable activation email sent by Curricula to Customer, subject to the terms of this Agreement and any other limitations expressly set forth in the activation email. Customer may use the Evaluation Product for its own internal evaluation purposes from the date in which Customer first accesses the Evaluation Product, until the expiration date set forth in the activation email or, if no expiration date is set forth in the activation email, for a period of up to fifteen (15) days from the date of access of the Evaluation Product (the “Evaluation Period”). Customer acknowledges that the Evaluation Product is Curricula’s Intellectual Property. At the end of the Evaluation Period, all evaluation licenses granted herein will automatically terminate and Customer will delete or return Evaluation Products in Customer’s possession, and provide written certification of such destruction or return in writing as requested by Curricula. Customer understands that Curricula may disable access to the Evaluation Products automatically at the end of the Evaluation Period, without notice to Customer. This Section will take precedence over any contradictory language in this Agreement as it relates to an Evaluation Product.
C. Customer Responsibilities. Customer (i) is responsible for the use of the Software and Services by Customer and its Authorized Users in compliance with this Agreement, including any applicable exhibits, addenda, Documentation and applicable laws and government regulations; (ii) is responsible for the accuracy, quality and legality of Customer Data, including the lawful use and transmission of Customer Data provided by Customer and its Authorized Users in connection with the Software and Services; (iii) will obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in this Agreement; and (iv) will use commercially reasonable efforts to prevent unauthorized access to or use of Curricula IP, Software and Subscriptions, and will notify Curricula promptly of such unauthorized use.
D. Software Restrictions. Customer shall not, and shall require its Authorized Users not to, directly or indirectly:
- Access or use the Software or Documentation beyond the scope of any license granted under Section II;
- Provide any other person (who is not an Authorized User), including any sub-contractor, independent contractor, affiliate or service provider of Customer, with access to or use of the Software;
- Modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof, except as authorized by Curricula;
- Combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs, except those that are provided or paired with the Software at the time of its delivery;
- Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code or other proprietary portions of the Software;
- Utilize the Software or any portion thereof to design, build (or guide, instructor train any third party or algorithm to design or build) any product or service with functionality that is substantially similar to the Software or that competes with Curricula;
- Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features, functionality, components, elements or parts of the Software, to any third party (who is not an Authorized User or a subsidiary or affiliate of Customer) for any reason;
- Use the Software or Documentation in violation of applicable law; or
- Use the Software or Documentation for purposes of developing a competing software product or service.
IV. SUBSCRIPTION.
A. Creating a Curricula Account. In order to use the Services, Customer must apply for and obtain a unique Curricula Account (the “Curricula Account”). If the Curricula Account is obtained on behalf of a legal entity, Customer must ensure that the correct entity name and entity type (sole proprietor, LLP, limited liability company, partnership, corporation, etc.) is provided to Curricula.
B. Subscription Rights. For the duration of the applicable Subscription Term provided in Section V and in accordance with the terms of this Agreement, Curricula grants to Customer a non-exclusive, non-transferable, non-assignable right to access, for Customer’s internal use only, the Curricula Services and the applicable Documentation and all associated Curricula IP accessible from Customer’s Curricula Account page at www.mycurricula.com . Customer is responsible for its and its Authorized Users’ compliance with the Agreement and acceptable use of the Services as provided in Section III(F) hereof.
C. Authorized Users. Customer acknowledges and agrees that the maximum number of Authorized Users will not exceed the number of Authorized Users set forth in the applicable Order. At the beginning of the Subscription Term, Customer will designate and allocate the Authorized Users. Customer may only designate Authorized User’s email addresses with domain names that Customer owns or is authorized by the domain name owner to use for the purposes contemplated herein. Customer may add additional Authorized Users during the Subscription Term, at the same pricing as set forth in the applicable Order. Notwithstanding anything in the Agreement to the contrary, any breach by Customer and its Authorized Users of this Section will result in the immediate suspension or termination of Customer and its Authorized Users’ access to Curricula Services.
D. Availability. Curricula will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) Planned downtime or maintenance (which Curricula shall try to keep to a minimum, and which Curricula shall schedule to the extent practicable during Saturday and Sunday), and (ii) Any unavailability caused by circumstances beyond Curricula’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Curricula employees), Internet service provider (or other Third-Party) failure or delay, or denial of service attack.
E. Customer Obligations. The Customer and all Authorized Users shall:
- only use the Services for the Customer’s own business purpose;
- use reasonable endeavors to maintain the security of all log-in details for the Curricula Account;
- only attempt to access the Services using authorized log-in details of the Customer;
- comply with reasonable requests and directions from Curricula personnel as to Customer’s use of the Services provided to Customer and its Authorized Users from time to time;
- promptly notify Curricula of any actual or suspected illegal or unauthorized activity or a security breach involving Curricula Services;
- comply with any Intellectual Property Rights asserted in any Curricula IP provided to Customer for the purposes of using with Curricula Services;
- maintain and not remove or obscure any proprietary notices on Curricula IP
F. Prohibited Use. Customer and its Authorized Users may not:
- utilize Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries);
- use Curricula Services in any manner that could disable, overburden, damage, or impair the Services;
- disseminate material that is abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious;
- disseminate materials that would constitute an infringement upon the patents, copyrights, trademarks, trade secrets or other intellectual property rights of others;
- disseminate materials that would give rise to liability under the Computer Fraud and Abuse Act;
- use Curricula Services to commit fraud or engage in other misleading or deceptive activities;
- upload to, or transmit from Curricula Services any viruses, worms, defects, Trojan horses, time-bombs, malware, spyware, or any other computer code of a destructive or interruptive nature;
- share Curricula Services and any associated Curricula IP and Curricula Confidential Information with any third-parties, except as expressly authorized in advance by Curricula in writing;
- use Curricula Services and Curricula IP in any way to provide services to any third-party;
- disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of Curricula Services and any Curricula IP;
- sell, resell, distribute, sublicense or otherwise transfer, Curricula Services and any Curricula IP, or make the functionality of Curricula Services available to any other party through any means; or
- reproduce, alter, modify or create derivatives of the Curricula IP.
Upon violating any of these prohibitions, Curricula may, in addition to any other remedy that Curricula may have at law or in equity, terminate any permission for Customer and any Authorized User to access Curricula Services or immediately remove the offending material.
V. TERM AND TERMINATION.
A. Term. The term of each Subscription is specified in the applicable Order or, if no period of time for the applicable Subscription is specified, for a period of one (1) year from the Effective Date (“Initial Subscription Term”). The Subscription will automatically renew after its Initial Subscription Term for additional periods of one (1) year each (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other of its intention not to renew the Subscription at least thirty (30) days prior to the expiration of the then-current Subscription Term.
B. Termination for Material Breach; Suspension. A Party may terminate this Agreement or one or more of the Orders hereunder, if the other Party commits a material breach, and fails to remedy such breach within thirty (30) days of being notified by the non-breaching Party of such breach (“Cure Period”). Notwithstanding the foregoing, Customer acknowledges and agrees that Curricula may, in its sole and absolute discretion, immediately terminate this Agreement, or affected Order, or suspend Customer’s access to any Services in connection with any actual, alleged or suspected: (i) breach of confidentiality obligations and license or use restrictions set forth in this Agreement and applicable exhibit, (ii) direct or indirect technical or security issues or problems caused by or relating to Customer, or (iii) violations of applicable law and, in Curricula’s determination, such violation cannot be adequately cured within the Cure Period. If Curricula terminates this Agreement or any Order due to Customer’s material breach, Curricula will not refund any amounts to Customer. If Customer terminates Service for Curricula’s material breach, Customer will receive a refund for the remainder of the then-current term for such Software or Service; provided that Customer will not be entitled to any refund if Customer is also in breach of the Agreement at the time of such termination. If Customer terminates Services other than for Curricula’s material breach, Customer will not receive a refund or credit of any Fees already paid or due to Curricula and, if applicable, all outstanding Services Fees under an applicable Order will accelerate and become immediately due and payable.
C. Termination for Convenience. Customer may request to close its Curricula Account at any time by contacting [email protected] . No further Fees will be billed and no refund will be made of any Fees already billed or paid except at Curricula discretion. If Customer cancels its Curricula Account, the Services and Customer Data will remain accessible by Customer until the period of the paid Subscription expires, after which Customer’s Curricula Account will be locked and Customer shall no longer be accessible to Customer or any of its Authorized Users via the Services. Curricula reserves the right to close any Curricula Account for any reason by giving thirty (30) days’ notice and by refunding any unused Fees on a pro rata basis.
D. Effect of Termination. Upon termination of an applicable Order for any reason, all access rights and licenses granted herein with respect to the affected Order will immediately terminate. Termination or expiration of any Order will not be deemed a termination or expiration of any other Orders in effect as of the date of termination or expiration, and this Agreement will continue to govern and be effective as to those outstanding Orders until those Orders and have expired or terminated by their own terms or as set forth herein. Within ten (10) business days of the termination of an applicable Order, each Party will return or delete all copies of the other Party’s intellectual property in its possession or control.
E. Survival. The provisions of Section III(D), Section IV (Fees, Taxes and Payment), Section VII (Confidentiality and Data Privacy), Section VII (Intellectual Property), Section IX(B) (Warranty Disclaimers), Section XI (Limitation of Liability), Section XII (Miscellaneous), and all accrued payment obligations, will survive the termination of this Agreement and the termination of all Orders.
VI. FEES, TAXES AND PAYMENT.
A. Fees. Customer will pay the fees for the Services set forth in the applicable Order (“Fees”). All Fees are non-cancelable and non-refundable. All Fees will be fully invoiced on the Order and paid advance for the year unless otherwise provided on the Order. Fees are exclusive of all tariffs, duties or taxes imposed or levied by any government or governmental agency, including without limitation, federal, state and local sales, use, value added or other similar taxes (collectively, “Taxes”) and Customer is responsible for paying all Taxes applicable to the Services provided by Curricula to Customer. Customer will reimburse Curricula for any and all expenses incurred by Curricula so long as such expenses are directly attributable to the Software and Services provided to Customer.
B. Payment Processing. Curricula uses third party tools to manage Customer Subscription transactions via credit/debit card and automated clearing house (ACH) payments. Curricula will invoice Customer based on Customer’s Order and this Agreement, and Customer is required to make payment within thirty (30) days . Customer agrees to keep its payment and billing information current at all times within the Customer Account.
C. Non-Payment. Curricula shall be under no obligation to provide the Services to Customer if the Fee is not paid to us on time based on the Order. The Customer must ensure that Curricula has complete and accurate billing and contact information throughout the subscription period, including the full name of the Customer, its business address, and a billing contact email address. If Fees become overdue, interest shall accrue thereon at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law, whichever is less, commencing on the date payment was due and accruing until the date payment is received by Curricula. In addition, Curricula reserves the right to suspend Customer’s access to the Services or Software until the balance is paid and/or Curricula may close Customer’s Curricula Account upon written notice. Additional claims for payment default remain reserved.
VII. CONFIDENTIALITY AND DATA PRIVACY.
A. Confidentiality Obligations. Recipient will: (i) not use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the Parties and/or to fulfill its obligations under this Agreement; (ii) use at least the same degree of care as Recipient uses to protect its own confidential information from unauthorized use, access or disclosure, but in no event less than a reasonable degree of care; (iii) limit disclosure of Confidential Information to those persons within Recipient’s organization who have a need to know and who have previously agreed in writing, prior to the receipt of Confidential Information, to be bound by confidentiality obligations similar to those set forth in this Agreement; (iv) not disclose any Confidential Information to third parties without Discloser’s prior written consent; (v) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody Discloser’s Confidential Information; and (vi) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations. Any reproduction of Confidential Information requires Discloser’s prior written consent and will remain the property of Discloser. Any reproductions will contain any and all notices of confidentiality contained on the original Confidential Information.
B. Exclusions to Confidentiality. The foregoing confidentiality obligations will not apply to information that Recipient can demonstrate: (i) is publicly known and made generally available through no improper action or inaction of Recipient; (ii) was already in the possession of, or known by Recipient prior to the time of disclosure by Discloser through no fault or breach of this Agreement by Recipient; (iii) was rightfully obtained by, or disclosed to, Recipient from a third party without any obligation to maintain the Confidential Information as proprietary or confidential; or (iv) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information. Recipient may disclose Confidential Information to the extent such disclosure is required to comply with applicable law or a valid order or requirement of a governmental or regulatory agency or court of competent jurisdiction, provided that Recipient (a) restricts such disclosure to the maximum extent legally permissible; (b) notifies Discloser as soon as practicable of any such requirement to the extent such provision of prior notice is permitted by applicable law; and (c) that subject to such disclosure, such disclosed materials will in all respects remain subject to the restrictions set forth in this Agreement.
C. Return of Confidential Information. Within ten (10) business days of the termination of this Agreement or upon Discloser’s written request, Recipient will promptly, at Recipient’s election, destroy or return all of Discloser’s Confidential Information in Recipient’s possession or in the possession of any representative of Recipient; provided, however, that Recipient will not, in connection with the foregoing obligations, be required to delete Confidential Information held electronically in archive or back-up systems, and such Confidential Information will in all respects remain subject to the restrictions set forth in this Agreement. Upon Discloser’s written request, Recipient will provide a certification, signed by an officer of Recipient, as to the destruction or return of Discloser’s Confidential Information.
D. Rights to Confidential Information. Recipient acknowledges and agrees that the disclosure of Confidential Information may cause irreparable injury to Discloser. Discloser will, therefore, be entitled to seek injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that Discloser prove irreparable harm and without the posting of a bond. This provision will not in any way limit such other remedies as may be available to Discloser at law or in equity. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
E. Applicability of GDPR. If use of the Services includes the processing of personal data (as described in the General Data Protection Regulation (EU) 2016/679), when performing its obligations under this Agreement, the following will apply:
- Customer will ensure that: (i) Customer is entitled to transfer the relevant personal data to Curricula so that Curricula may lawfully use, process and transfer the personal data on Customer’s behalf and in accordance with this Agreement; and (ii) the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws.
- Curricula will: (i) process personal data in compliance with and subject to this Agreement and any lawful and reasonable instructions received from Customer; (ii) not use or process or permit any Curricula subcontractors to use or process, any personal data except to the extent necessary to perform its obligations under this Agreement; (iii) implement and maintain adequate and reasonable technical and organizational safeguards designed to protect against the unauthorized or accidental access, loss, alteration, disclosure or destruction of personal data in Curricula’s possession or control; (iv) ensure that it has appropriate procedures in place designed to comply with data protection laws applicable to Curricula and will take all reasonable steps to ensure that persons employed by it, and other persons engaged at its place of work, are aware of and comply with applicable data privacy laws and regulations.
- Curricula may process or otherwise transfer personal data in or to any country outside the European Economic Area or any country not deemed adequate by the European Commission pursuant to applicable data protection laws to the extent necessary for the provision of the Software and Services.
VIII. INTELLECTUAL PROPERTY.
A. Curricula Intellectual Property Rights; Restrictions. All Intellectual Property Rights in the Curricula IP belong exclusively to Curricula or its licensors. Customer acknowledges and agrees that it will not (and will not allow any third party), in whole or in part, to directly or indirectly: (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Curricula IP, (ii) sell, resell, distribute, sublicense or otherwise transfer, the Curricula IP, or make the functionality of the Curricula IP available to any other party through any means, or (iii) reproduce, alter, modify or create derivatives of the Curricula IP. Customer will maintain the copyright notice and any other notices that appear on Curricula IP, including any interfaces related to the Software or Subscriptions.
B. Aggregate Data; Feedback. Notwithstanding the foregoing, Curricula owns all Intellectual Property Rights in and to Aggregate Data, and may use, reproduce, sell, publicize or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data that is de-identified (stripped of any information used to identify Customer, including personal data). Aggregate Data will also include statistical information related to the use and performance of Software and Services, provided that such statistical information is de-identified. Customer grants to Curricula a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use and exploit any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Customer or its Authorized users relating to the Software and Services. Feedback will not include Confidential Information. Additionally, Customer hereby grants Curricula a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, license, including the right to sublicense to third parties, and right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, publish, distribute, sell, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, display, perform, and use and practice any phishing message or communication that Customer or its Authorized User submits to Curricula as well as all modified and derivative works thereof; provided that such phishing message or communication is anonymized.
C. Curricula Templates and Formats. Customer acknowledges that for applicable Software and Services, Curricula may provide certain Curricula templates and formats to Customer, and Customer will have a non-exclusive, non-transferable, non-sublicenseable right to use, modify, display and reproduce such templates and formats for Customer’s internal use with the applicable Software or Service, subject to the restrictions set forth in this Agreement. To the extent that any such modified templates andor formats do not embody or otherwise include Customer’s Confidential Information and Customer Marks, Curricula owns and holds all right, title and interest in and to such templates andor formats.
D. Customer Intellectual Property; Restrictions. Curricula acknowledges that Customer owns all right, title, and interest in and to Customer Marks and Customer Data (excluding Aggregate Data). Customer grants to Curricula the worldwide right to use, access, host, copy, transmit and display Customer Marks and Customer Data, as reasonably necessary for Curricula to perform its obligations in accordance with this Agreement. Curricula may disclose Customer Data to its third-party contractors and service providers (including cloud service providers) to the extent necessary to provide the applicable Software and Services in accordance with this Agreement; provided that such third-party contractors and service providers are bound by confidentiality obligations similar to the provisions of this Agreement. Curricula expressly disclaims any Customer Data which Customer has generated for use with the Services, and Customer agrees to indemnify, hold harmless and, at Curricula’s option, to defend Curricula, its officers, directors, employees, contractors and agents from and against any losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) incurred as a result of any alleged or actual violations of any third party rights arising out of the Customer Data.
E. Third Party Intellectual Property. Curricula utilizes third party images and templates to simulate phishing attacks and other security threats. Curricula does not represent these third parties, and makes no claim to third party intellectual property.
F. U.S. Government Restricted Rights. The Curricula IP, Software and Services are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFARS Section 227.7202 and FAR Sections 12.211-12.212, as applicable. All Curricula IP, Software, and Services are and were developed solely at private expense and the use of Curricula IP, Software and Services by the United States Government are governed solely by this Agreement and are prohibited except to the extent expressly permitted by this Agreement.
IX. WARRANTIES AND DISCLAIMERS.
A. Warranty. Curricula warrants to Customer that (i) it has the rights to provide Software and Services to Customer as set forth in this Agreement; and (ii) during the applicable Subscription Term, the Services and Software will perform materially as described herein. The warranty set forth in this Section will not apply if (i) Customer has used the Software or Services contrary to Curricula’s instructions as may be set forth in the Documentation; or (ii) where the Software, Services, or Customer’s use of or access thereto has been modified or altered by any party other than Curricula or Curricula’s duly authorized representatives. In the event of a breach of the warranty in this Section, Curricula will, at its sole option, either repair or correct the non-conformity or refund the Customer its prorated Fees for the time the non-conformity materially denied the Customer use of or access to the Software or Services to which they were subscribed, but in no case shall a refund exceed the prorated Fees attributable to one (1) month of Subscription Services. The foregoing states Customer’s sole remedy and Curricula’s entire liability for breach of warranty.
B. WARRANTY DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION IX(A), ALL SOFTWARE, SUBSCRIPTIONS, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND CURRICULA EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. CURRICULA DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM USING THE SOFTWARE, SERVICES AND SUBSCRIPTIONS. CURRICULA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, OR WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR WITHOUT DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. CURRICULA MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, AVAILIBILITY, TIMELINESS, QUALITY, COMPLETENESS, SUITABILITY OR RELIABILITY OF ANY INFORMATION OR DATA ACCESSED ON OR THROUGH THE SERVICES. NO INFORMATION OBTAINED FROM CURRICULA, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CURRICULA DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF THE SOFTWARE OR SERVICES. THE FOREGOING EXCEPTION TO DISCLAIMER OF WARRANTIES SHALL NOT APPLY TO ANY EVALUATION PRODUCT, WHICH IS PROVIDED ENTIRELY “AS IS’ AND WITH NO WARRANTIES WHATSOEVER.
C. Regulations; Suitability. Some of the Services are designed to help Customer and its Authorized Users comply with various regulatory requirements that may be applicable to Customer or its Authorized Users. NOTWITHSTANDING ANYTHING TO THE CONTRARY, HOWEVER, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (I) CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR UNDERSTANDING THE REGULATORY REQUIREMENTS APPLICABLE TO ITS BUSINESS; (II) FOR ENSURING THAT IT IS COMPLIANT WITH THE REGULATORY REQUIREMENTS APPLICABLE TO ITS BUSINESS; (III) FOR SELECTING AND USING CURRICULA SOFTWARE AND SERVICES IN A MANNER THAT COMPLIES WITH THE APPLICABLE REQUIREMENTS; AND (IV) FOR DETERMINING THE SUITABILITY OF THE SERVICES FOR CUSTOMER’S USE IN LIGHT OF ANY APPLICABLE REGULATIONS.
X. INDEMNIFICATION.
A. Curricula Indemnity. Curricula agrees to indemnify, defend, and hold Customer, its employees and agents harmless from any and all claims and/or demands, including reasonable attorneys’ fees, arising out of or in connection with a claim that the Curricula IP, Software or Subscription, infringes a valid third party intellectual property right. If the Curricula IP, Software or Subscription, or parts thereof, become, or in Curricula’s opinion may become, the subject of an infringement claim, Curricula may, at its option: (i) modify or replace such Curricula IP, Software or Subscription with a non-infringing, functional equivalent; (ii) obtain for Customer all necessary licenses and permissions to continue using the Curricula IP, Software or Subscription; or (iii) require that Customer cease to use the Curricula IP, Software or Subscription and with respect to Subscriptions and refund any pre-paid Fees for the unused remainder of the Subscription Term;
B. Exclusions to Curricula Indemnity. Curricula will have no indemnification obligations with respect to any action arising out of: (i) the use of any Curricula IP, Software or Subscription, or any part thereof, in combination with other software or products not authorized by Curricula; (ii) any modification of the Curricula IP, Software or Subscription not performed or expressly authorized by Curricula; (iii) Customer’s failure to substantially comply with Curricula’s reasonable written instructions which if implemented would have rendered the Curricula IP, Software or Subscription non-infringing, provided that a sufficient time period is given to Customer in order to implement such written instructions; or (iv) the use of the Curricula IP, Software or Services other than in accordance with this Agreement and applicable Documentation.
C. Customer Indemnity. Customer agrees to indemnify, defend and hold Curricula, its employees and agents harmless from any and all claims and/or demands, including reasonable attorneys’ fees, made by any third party arising out of or related to Customer’s alleged or actual use or misuse of the Curricula IP, Software and Subscriptions, including without limitation: (a) claims related to the unauthorized disclosure or exposure of personal data or other private information by Customer; (b) claims that the Customer Data infringes a third party right; (c) claims that use of a Subscription by Customer, including by Customer’s Authorized Users, harasses, defames, or defrauds a third party; or (d) claims arising from Customer’s use of the Software and Services in violation of this Agreement.
D. Indemnity Procedures. Each Party which seeks indemnification (the “Indemnified Party”) will (i) notify the other Party (the “Indemnifying Party”) promptly after receiving notice of any threat or claim in writing of such actions set forth above, provided that if the Indemnified Party fails to notify the Indemnifying Party promptly of any threat or claim, the Indemnifying Party will be relieved of its obligation to indemnify the Indemnified Party to the extent the Indemnifying Party is prejudiced by the delay in notice; (ii) grant the Indemnifying Party sole control of the defense and any related settlement negotiations; provided no settlement may be agreed to without the Indemnified Party’s consent (which consent will not be unreasonably withheld); and (iii) reasonably cooperate, at the Indemnifying Party’s expense, with the Indemnifying Party in defense of such claim.
XI. LIMITATION OF LIABILITY.
A. Exclusion of Consequential and Related Damages. IN NO EVENT WILL A PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
B. Limitation of Monetary Damages. EXCEPT FOR LIABILITY ARISING OUT OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION X, IN NO EVENT SHALL CURRICULA’S TOTAL, AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY CURRICULA UNDER THIS AGREEMENT WITHIN THE IMMEDIATELY PRECEDING THREE (3) MONTHS OF THE EVENT THAT GAVE RISE TO THE LIABILITY.
C. Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
XII. MISCELLANEOUS.
A. Publicity. Customer hereby grants a limited license to Curricula whereby Curricula, during the Subscription Term, may utilize the Customer’s name and logo on Curricula’s website and marketing material for the informational purposes, including showing that the Customer is a customer of Curricula.
B. Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any legal claims, proceedings or litigation arising out of or in connection with the Software and Services will be brought solely in the federal courts in Fulton County, Georgia, and each Party hereto consents to the jurisdiction and venue of such courts in any suit, action or proceeding concerning this Agreement. The Parties agree that the Uniform Computer Information Transactions Act (UCITA) or any version thereof, adopted by any state, in any form, will not apply to this Agreement.
C. Notices. All notices in connection with this Agreement will be in writing and will be deemed effective (i) upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or (ii) five (5) business days after having been sent by registered or certified mail or the local equivalent, as evidenced by the postmark. Notices will be addressed to the applicable address as listed in the Order or as subsequently modified by written notice.
D. Entire Agreement; Order of Precedence. This Agreement and the applicable exhibits, Orders, or addenda constitutes the complete and entire agreement between Curricula and Customer with respect to the Software and Services. This Agreement expressly replaces and supersedes any prior agreements, oral or written, between Curricula and Customer concerning the subject matter hereof. Curricula hereby rejects and deems deleted any additional or different terms or conditions that Customer presents, including, but not limited to, any terms or conditions contained or referenced in any purchase order, acceptance, or acknowledgement. No amendment to this Agreement will be effective unless it is in writing and signed by the authorized representatives of each Party. In the event of conflict between any of the terms in this Agreement and the terms set forth in an exhibit, Order, or addendum, this Agreement will govern. An Orders, exhibit, or addenda shall only vary the terms of this Agreement if the same is entered into by the Parties for the express purpose of amending the terms hereof.
E. Assignability. Any assignment of this Agreement, Order or addenda by either Party to another party, including any transfer by operation of law or otherwise, without the other Party’s prior written consent (which consent will not be unreasonably withheld) will be null and void; provided, however, that each Party may assign this Agreement, Order or addenda in whole or in part, without consent, to an affiliate or in connection with any merger, asset purchase or sale, stock purchase or sale or similar change of control transaction. Curricula may use subcontractors in the performance of its obligations. Curricula will disclose subcontractors having access to Customer Data upon Customer’s written request.
F. Force Majeure. With the exception of Customer’s obligation to make payments due and payable to Curricula, neither Curricula nor Customer will be considered to be in breach or default of this Agreement as a result of its delay or failure to perform its obligations herein when such delay or failure arises out of causes beyond the reasonable control of the Party whose performance has been affected.
G. No Third-Party Beneficiaries. Nothing in this Agreement will benefit or create any right or cause of action in or on behalf of any person or entity other than Customer and Curricula.
H. Waiver. The failure of a Party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
I. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
J. Equitable Relief. The Parties hereto acknowledge and agree a breach of this Agreement by a Party would cause the other Party irreparable harm for which monetary damages alone would be inadequate. In addition to damages and any other remedies to which one Party may be entitled, both Parties acknowledge and agree that each Party may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.
K. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
