(Effective Date 1/18/2020)

MediaPRO Services Agreement

This MediaPRO Services Agreement governs the Customer’s (“You” or “Your”) acquisition and use of MediaPro Holdings, LLC’s (“MediaPRO”) services, including access to the Learning Management System, all ordered training tools and products, including Customized Courses and any Free Trials (each as defined herein), as set forth in an applicable Sales Order, Statement of Work, and/or Professional Services Addendum as between MediaPRO and You (collectively, the “MediaPRO Services”).  This MediaPRO Services Agreement, any Sales Orders, Statement of Work, and/or Professional Services Addendum, entered into by You and any exhibits, addenda attached thereto, combined with the terms of the Privacy Policy form the entirety of the contract between You and MediaPRO (referred to collectively as the “MediaPRO Services Agreement”).  You and MediaPRO may be referred to herein as a “Party” individually or collectively as “Parties”.

1. Definitions; Scope; Procurement and Provisioning of MediaPRO Services by Affiliates; Authorized Users; Usage Rights; Free Trials; Professional Services.

  1. Definitions. Capitalized terms shall have the meanings provided in this section or as specified in the body of this MediaPRO Services Agreement, Sales Order, Statement of Work, or Professional Services Addendum.

Affiliate means any legal entity directly or indirectly controlling, controlled by or under common control of the Customer. For purposes of this definition, the term “control” means ownership of greater than fifty percent (50%) of the applicable voting shares or equivalent decision-making authority of the controlled entity.

Authorized Users or “Users means named users/employees of Customer and of Customer’s authorized Affiliates, including employees, agents or contractors.

Customer means You and includes any of Your Affiliates receiving MediaPRO Services, whether directly or indirectly.

Customer Data means data, content, information or material originated and provided by Customer or any of Your Affiliates for use with the MediaPRO Services.

Customized Course has the meaning set forth in Section 3(b) below.

Feedback means comments, questions, enhancement requests, suggestions, ideas, or other information related to the MediaPRO Services.

Information Security Guidelines” means MediaPRO’s published Information Security Guidelines as may be amended from time to time at MediaPRO’s discretion, which are incorporated herein by reference.

Intellectual Property” or “Intellectual Property Rights” collectively means any and all patents, patent registrations, patent applications, data rights, utility models, business processes, trademarks or names, service marks or names, trade secrets, know how, mask works, copyrights, moral rights and any other form of proprietary protection arising or enforceable under the laws of the United States, any other jurisdiction or any bi-lateral or multi-lateral treaty.

Learning Management System” or “LMS means a software application for the administration, documentation, tracking, reporting, and delivery of educational courses or training programs.

MediaPRO Service(s) means the applicable subscription service(s) provided by MediaPRO, as described in the applicable Sales Order and includes any services of third parties provided by MediaPRO to Customers as a reseller.

 “Professional Services means all services used to enable the Customer to build upon existing content or extend the capacity of existing tools, and may include program implementation, customization of all content, localization, and/or other services. Such services are provided by MediaPRO to Customer as specified as part of the customization services section of a separate Professional Services Addendum or Statement of Work and as may be described on a Sales Order.

Sales Order means an ordering document specifying the MediaPRO Services to be provided hereunder that is entered into between Customer and MediaPRO including any addenda and exhibits thereto.

Service Level Commitment” or “SLC means MediaPRO’s published Service Level Commitment as may be amended from time to at MediaPRO’s discretion, which is incorporated herein by reference.

Statement of Work” or “SOW” shall mean a separate work order for services to be performed by MediaPRO for Customer pursuant to the fees and details related to such work as may be described on such document.

b. Scope. This MediaPRO Services Agreement governs the SLC, Information Security Guidelines and all executed Sales Orders, SOWs and/or Professional Services Addendum and any Exhibits or attachments thereto, the terms of which made a part hereof and are incorporated herein by reference. All capitalized terms not defined herein will have the meanings attributed to them in the Sales Order, SOW or Professional Services Addendum as applicable.

c. Procurement and Provisioning of MediaPRO Services by Affiliates. You may procure MediaPRO Services under this MediaPRO Services Agreement for Your own account and on behalf of one or more of your Affiliates, or your Affiliates may procure MediaPRO Services directly under this MediaPRO Services Agreement pursuant to a Sales Order. In either case, You and Your Affiliates will be jointly and severally liable for Your and their acts and omissions.

d. Authorized Users. During the Term as further defined in Section 5(b) and as set forth in each Sales Order, MediaPRO will make the MediaPRO Services available to the Customer who executed the applicable Sales Order, for access and use by such Authorized Users solely for Your internal business purposes in accordance with this MediaPRO Services Agreement and the respective Sales Order(s).

e. Usage Rights. The number of Authorized Users assigned to the MediaPRO Services shall be defined in a Sales Order. If at any time during the Term, the count of Authorized Users assigned to a MediaPRO Service exceeds the Number of Authorized Users stated in the Sales Order for that MediaPRO Service, Customer agrees to remit the additional fees set forth in the Sales Order in accordance with the parties’ standard payment terms. MediaPRO will “true up” the number of Authorized Users every ninety (90) days during the Term by, at MediaPRO’s option, either: (i) having Customer run a report to count the number of Authorized Users and report the same to MediaPRO; or (ii) running its own report to count the number of Authorized Users and report the same to Customer, for the previous year. Any decision made by MediaPRO to not exercise its rights under this Section shall have no effect on the obligations of Customer to remit the additional fees as required and shall not be deemed a waiver of MediaPRO’s right to enforce the true-up provisions set forth above.

f. Free Trials. MediaPRO may, in its sole discretion, make one or more MediaPRO Services available to You on a trial basis, free of charge (“Free Trial”). In no event shall the Free Trial extend beyond fourteen (14) calendar days following the commencement of the Free Trial and unless otherwise stated in the Sales Order, MediaPRO Services offered during the Free Trial may be accessible by no more than twenty (20) users. Additional Free Trial terms and conditions may appear on the Free Trial access web page or applicable Sales Order. Any such additional terms and conditions are incorporated into this MediaPRO Services Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE MEDIAPRO SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE MEDIAPRO SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO ONE OR MORE PAID MEDIAPRO SERVICES. Notwithstanding Section 6 (MediaPRO Services Warranties; Warranties Disclaimer), during the Free Trial all services and any work performed by MediaPRO, including the MediaPRO Services are provided “AS-IS,” WITHOUT ANY WARRANTY WHATSOEVER.

g. Professional MediaPRO Services. Customer and MediaPRO may enter into a separate Professional Services Addendum or SOW that describes the specific Professional Services to be provided. Professional Services customizations are non-refundable. MediaPRO shall provide notice to Customer after the Professional Services have been completed. In the event of any dispute with regard to the completion of the Professional Services, which must be notified within thirty (30) days of MediaPRO’s notice of completion, both parties shall meet and confer and escalate the dispute to upper management for resolution. Customer shall be responsible for payment of the Professional Services amount regardless of the pendency of the dispute process and MediaPRO shall reimburse Customer for any such payment in the event the Parties resolve the dispute resulting in a requirement of a refund of such Professional Services fees.  Further terms applicable to the Professional MediaPRO Services may be set forth in the applicable Professional Services Addendum or SOW.

2. Restrictions; Use of MediaPRO LMS; Removal of Content; Suspension.

  1. Restrictions. Customer will not, and will ensure that its Authorized Users do not, directly or indirectly: (i) make the MediaPRO Services available to anyone other than Authorized Users or use the MediaPRO Services for the benefit of any unrelated third-party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the MediaPRO Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the MediaPRO Services or any software, documentation or data related to or provided with the MediaPRO Services; (iv) modify, translate or create derivative works based on the MediaPRO Services or remove any proprietary notices or labels from the MediaPRO Services; (v) use or access the MediaPRO Services to build or support, and/or assist a third-party in building or supporting products or services competitive to the MediaPRO Services; (vi) use or access the MediaPRO Services for any competitive purpose; (vii) include the MediaPRO Services in a service bureau or outsourcing offering; (viii) permit access to the MediaPRO Services by a direct competitor of MediaPRO; (ix) impersonate any person or entity, or otherwise misrepresent Your affiliation with a person or entity; or (x) make any use of the MediaPRO Services that violates any applicable local, state, national, international or foreign law or regulation.
  2. Use of MediaPRO LMS; Removal of Content. You are not permitted to add any content outside of content offered by MediaPRO, including, without limitation, Customer Data, to the MediaPRO LMS, except for Customized Courses. MediaPRO reserves the right to remove any content that MediaPRO finds objectionable in its sole discretion or violates law or third-party rights without notice or liability to You.
  3. Suspension. MediaPRO may immediately suspend Your account and access to the MediaPRO Services if: (i) You fail to make payment due within ten (10) business days after MediaPRO has provided You with written notice of such failure; or (ii) You violate Section 2(a) (Restrictions), Section 2(b) (Use of MediaPRO LMS; Removal of Content), or Section 9 (Confidential Information). Any suspension by MediaPRO of the MediaPRO Services under the preceding sentence will not relieve Customer of its payment obligations hereunder.

 

3. Ownership of MediaPRO Services; Grant of Right to Use MediaPRO Services; Customer Data; Pre-Existing Intellectual Property; Statistical Information.

  1. Ownership of MediaPRO Services. MediaPRO retains and owns all right, title, interest, and all Intellectual Property Rights in and to the MediaPRO Services, including Customized Courses and any software or documents related to or provided with the MediaPRO Services and all Intellectual Property Rights and derivatives, modifications, refinements or improvements thereto. You agree that MediaPRO will own all Feedback and has all rights to use and incorporate Feedback into the MediaPRO Services without restriction or payment to You. No rights are granted to You other than as expressly set forth herein.
  2. Grant of Right to Use MediaPRO Services. MediaPRO grants to Customer a limited, non-exclusive, non-sublicensable and non-transferable right to access the MediaPRO Services identified in the applicable Sales Order during the Term only for the purpose and pursuant to the scope of use set forth herein. Notwithstanding the provisions of Section 2(a)(iv) above, Customer may use Customer Data, as defined in 3(c) below, to brand, configure, modify or customize courses that are part of the MediaPRO Services as provided in a Sales Order, SOW or Professional Services Addendum (“Customized Courses”); provided however that any and all Customized Courses, excluding Customer Data, shall be owned by MediaPRO. Customer shall also be entitled to any Updates (as defined herein) to the MediaPRO Services during the Term. MediaPRO shall at all times retain ownership of the MediaPRO Services. For purposes of this MediaPRO Services Agreement, “Updates” means any minor enhancements or updates, when and if available, to the MediaPRO Services used hereunder during the Term, and which MediaPRO, in its discretion, makes generally available to companies that have paid the applicable MediaPRO Services fees. MediaPRO has no obligation to develop Updates.
  3. Customer Data. You own any Customer generated content, data, information or material originated by You or that You provide while using the MediaPRO Services and any Pre-Existing Intellectual Property (as defined in 3(d) below) (“Customer Data”), including Customer Data that is incorporated into Customized Courses. You hereby grant MediaPRO a worldwide, fully-paid, irrevocable license to use the Customer Data in connection with the Customized Courses in order to provide the MediaPRO Services to You and for MediaPRO’s internal use so long as such Customer Data does not include Pre-Existing Intellectual Property or Customer-identifying information. MediaPRO may also use the Customized Courses without Your Pre-Existing Intellectual Property or Customer-identifying information after de-identifying any Customer Data for purposes of updating its own templates and improving its services and offerings for other customers. You will be solely responsible for: (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and used by You or Your Authorized Users within the MediaPRO Services; and (ii) the collection, procurement, storage and use of Customer Data. Customized Courses and Customer Data incorporated therein will not be accessible by Customer if Customer does not maintain an active subscription to the MediaPRO Services that provide access to such Customized Courses.  At no time will MediaPRO be granted rights to use Customer’s Pre-Existing Intellectual Property for anything other than providing MediaPRO Services to Customer.
  4. Pre-Existing Intellectual Property. Any of Your Intellectual Property Rights that existed prior to or that were derived solely by You during the term of the offering of the MediaPRO Services outside of Your use of the MediaPRO Services (“Pre-Existing Intellectual Property”) are solely Your Intellectual Property and nothing in these terms and conditions shall affect or purport to transfer any rights thereto to MediaPRO.
  5. Statistical Information. You agree that MediaPRO may monitor Your use of the MediaPRO Services and compile anonymous summaries of Customer Data, with other data in an aggregate and anonymous manner, to derive statistical and performance information related to the provision and operation of the MediaPRO Services and may make such information publicly available, provided that such information does not include any data that would enable the identification of Customer or Customer Data, or the disclosure of Customer Confidential Information. MediaPRO retains all rights, title and interest in and to such statistical and performance information.

4. Fees; Invoicing and Payment; Taxes.

  1. Fees. Customer will pay all fees set forth in the applicable Sales Order, SOW and Professional Services Addendum, if applicable, for the applicable services set forth therein (the “MediaPRO Services Fees”). All dollar amounts referred to in the Sales Order, SOW or Professional Services Addendum are in United States Dollars (“U.S. Dollars”), and all amounts owing under the Sales Order shall be paid in U.S. Dollars. All fees are non-cancelable and non-refundable, except as expressly specified in the Sales Order. Any fees paid pursuant to a particular or specific Sales Order, SOW or Professional Services Addendum will not offset any fees due under any other Sales Order, SOW or Professional Services Addendum.
  2. Invoicing and Payment. Unless otherwise stated in the Sales Order, SOW, or Professional Services Addendum, invoiced fees are due net thirty (30) days from the invoice date. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of one and one half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. You are responsible for providing complete and accurate billing and contact information to MediaPRO and notifying MediaPRO of any changes to such information as needed to process Sales Orders.
  3. Taxes. The MediaPRO Services Fees invoiced to Customer do not include any excise, sales, use, value added or other taxes, tariffs or duties relating to or arising from this MediaPRO Services Agreement or that may be applicable to the MediaPRO Services or Professional Services and are not subject to offset or reduction by Customer. Customer shall be responsible for and shall pay all such taxes, duties and assessments relating to or arising under this MediaPRO Services Agreement (but excluding taxes based on MediaPRO’s income). All payments by Customer for the MediaPRO Services or Professional Services will be made free and clear of, and without reduction for, any withholding taxes. Any such taxes which are otherwise imposed on payments to MediaPRO will be Customer’s sole responsibility. Customer will provide MediaPRO with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by MediaPRO to establish that such taxes have been paid. You are not responsible for any taxes based on MediaPRO’s net income or property.

 

5. Term; MediaPRO Services Term and Renewal; Termination for Cause; Effect of Termination; Data Portability and Deletion; Survival.

  1. Term. This MediaPRO Services Agreement will be in effect from the start date specified on the Sales Order, SOW or Professional Services Addendum, if applicable, and will continue until all MediaPRO Services or Professional Services hereunder have expired or have been terminated. If You elect to use the MediaPRO Services for a Free Trial and do not purchase MediaPRO Services before the end of the Free Trial period, this MediaPRO Services Agreement will terminate at the end of such Free Trial period.
  2. MediaPRO Services Term and Renewal. The initial term of each MediaPRO Services shall be as specified in the applicable Sales Order or SOW (the “Initial Term”). The MediaPRO Services shall automatically renew for subsequent terms each such subsequent term to be equivalent in time to the Initial Term (each “Renewal Term” and collectively with the Initial Term, referred to as the “Term”), unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant Term. The pricing during any Renewal Term may increase by up to five percent (5%) above the applicable pricing in the prior Initial or Renewal Term. Renewal of promotional or one-time priced MediaPRO Services will be at MediaPRO’s list price in effect at the time of the applicable renewal. Your pricing for any Renewal Term will be based upon Your actual Number of Authorized Users as of the date on which the then current Term ends.
  3. Termination for Cause. In the event of a material breach of this MediaPRO Services Agreement, or of any Sales Order, SOW or Professional Services Addendum by either Party, the non-breaching Party will have the right to terminate any or all Sales Orders, SOWs or Professional Services Addendum subject hereto, and this MediaPRO Services Agreement for cause if such breach has not been cured within thirty (30) days after written notice from the non-breaching Party specifying the breach. Provided, however, that MediaPRO shall have the right to terminate any or all Sales Orders, SOWs or Professional Services Addendum and this MediaPRO Services Agreement for cause immediately if Customer breaches Section 2(a) (Restrictions), Section 2(b) (Use of MediaPRO LMS; Removal of Content) or Section 9 (Confidential Information). Additionally, either Party may terminate any or all Sales Orders, SOWs or Professional Services Addendum and this MediaPRO Services Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or proceeding is not resolved to the satisfaction of the Party that is not the subject of the petition or proceeding within thirty (30) days of receiving notice of same.
  4. Effect of Termination. If MediaPRO terminates an Sales Order, SOW or Professional Services Addendum for Customer’s uncured material breach: (i) all fees set forth in the terminated Sales Order(s), SOW or Professional Services Addendum will be immediately due and payable; (ii) all rights granted thereunder will immediately terminate; and (iii) if such terminated Sales Order(s) SOW or Professional Services Addendum includes any additional Authorized User fees and such fees have been incurred, they shall also be immediately due and payable. Upon termination of this MediaPRO Services Agreement, all rights to access and use the MediaPRO Services will terminate; both MediaPRO and You will return and/or destroy all Confidential Information of the other Party in its possession; and MediaPRO will irretrievably delete and destroy Customer Data in accordance with Section 5(e) (Data Portability and Deletion) below. Further, upon termination of this MediaPRO Services Agreement, Customer must immediately uninstall any MediaPRO software in its possession or otherwise on its premises and MediaPRO will provide Customer with a certificate of removal to confirm Customer compliance. The certificate must be signed by an authorized officer of the Customer and returned to MediaPRO within thirty (30) days.
  5. Data Portability and Deletion. Upon at least ten (10) business days’ advance written notice, MediaPRO will make all Customer Data available to You for export or download, in a manner mutually agreed upon by both Parties, at any time during the Term. Your Customer Data will also be available to you thirty (30) days after the termination or expiration of this MediaPRO Services Agreement. After such thirty (30) day period, MediaPRO will have no obligation to maintain or provide Customer Data to you and will delete or destroy all copies of the Customer Data on MediaPRO’s systems, or otherwise in its possession or control, unless legally prohibited from doing so.
  6. Survival. The following Sections will survive termination of this MediaPRO Services Agreement: Sections 2(a), 3, 4, 5, 6(b), 7, 8, 9, and Section 10.

 

6. MediaPRO Services Warranties; Service Level Commitment; Warranties Disclaimer; Training Materials.

a. MediaPRO Services Warranties. MediaPRO warrants that, for a period of sixty (60) days from the date upon which You are granted access to or from the date of delivery of the MediaPRO Services, the MediaPRO Services, under normal use, will: (i) perform materially in accordance with this MediaPRO Services Agreement, the applicable MediaPRO Services documentation and the applicable Sales Order(s) and (ii) be provided in a manner consistent with generally accepted industry standards. MediaPRO does not warrant the MediaPRO Services for: (x) any defects attributable to improper operation, use, misuse or abuse; (y) changes in supporting third-party software products that may adversely affect software functionality; or (z) any imprecision in regard to the recording of courseware completion data. You will notify MediaPRO of any warranty deficiencies within thirty (30) days of the date upon which You are granted access to or from the date of delivery of the MediaPRO Services and Your exclusive remedy will be the re-performance of the deficient MediaPRO Services. If MediaPRO cannot re-perform such deficient MediaPRO Services as warranted, You will be entitled to terminate the deficient MediaPRO Services and recover a pro-rata portion of the fees paid to MediaPRO for such deficient MediaPRO Services, and such refund will be Your exclusive remedy and MediaPRO’s entire liability.

b. Service Level Commitment. During the Term, MediaPRO is committed to meeting the commitments set forth in the MediaPRO Service Level Commitment. The Service Level Commitment includes remedies available to Customer for MediaPRO’s failure to meet stated commitments. MediaPRO may modify its Service Level Commitments upon prior notice to Customer, however MediaPRO shall not materially downgrade its Service Level Commitments through any such changes/modifications.

c. WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, MEDIAPRO AND ITS THIRD-PARTY PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. MEDIAPRO DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE MEDIAPRO SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE MEDIAPRO SERVICES. MEDIAPRO DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE MEDIAPRO SERVICES OR THAT MEDIAPRO WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD-PARTY ACCESS. MEDIAPRO DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.

d. Training Materials MediaPRO Services include training materials that are designed to educate its Customers and their employees on current laws and regulations, however, MediaPRO is not responsible for Customer’s compliance with applicable State, Federal and International laws (“Applicable Laws”) and hereby disclaims any responsibility or liability for claims, regulatory, criminal or other administrative actions against Customer for which Customer claims reliance on any training materials provided through the MediaPRO Services. Customer acknowledges that MediaPRO assumes no responsibility or liability for Customer’s compliance or non-compliance with Applicable Laws. It is Customer’s sole responsibility to comply with all Applicable Laws.

7. Indemnification.

  1. MediaPRO. MediaPRO shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the MediaPRO Services infringe any copyright, trade secret or other proprietary right of any third party and shall pay any final judgment awarded or settlements entered into. Customer shall give such assistance and information as MediaPRO may reasonably require to settle or oppose such claims. In the event any such infringement, claim, action, or allegation is brought or threatened MediaPRO will, at its sole option and expense use its best efforts to: (1) procure for Customer the right to continue use of the MediaPRO Services or the infringing portion thereof to the extent it is commercially practicable; (2) modify, amend or replace the MediaPRO Services or infringing part thereof with other software having substantially the same or better capabilities to the extent it is commercially practicable; or (3) if MediaPRO determines that neither of the foregoing remedies is feasible, then You will be entitled to a pro-rata refund for prepaid fees for the infringing MediaPRO Services not performed or utilized as of the date such determination is made by MediaPRO. The foregoing obligations shall not apply to the extent the infringement arises as a result of (i) modifications to the MediaPRO Services made by any party other than MediaPRO or MediaPRO’s authorized representative, (ii) a combination of the MediaPRO Services with Customer’s or third party products or services, (iii) specifications solely provided by or on behalf of Customer; (iv) the failure by Customer to use corrections recommended by MediaPRO which MediaPRO identifies to Customer as fixing or preventing infringement; (v) intellectual property provided by or on behalf of Customer to MediaPRO for use in connection with the MediaPRO Services; (vi) Customer Data, Customer’s or a third party’s technology, software, material, data or business processes; or (vii) any use of the MediaPRO Services not in compliance with this MediaPRO Services Agreement or the applicable Sales Order.
  2. Customer. Customer shall indemnify, defend and hold MediaPRO and its affiliates and their respective officers, directors, employees and agents harmless from any third party claims or legal action and related reasonable legal costs caused by Customer’s or its users’ use of the MediaPRO Services, expressly including, without limitation, any claim from any third party caused by a violation of such third party’s rights or of applicable privacy or other laws by Customer or its users in using the MediaPRO Services.
  3. Procedure. As a condition to the indemnifying Party’s obligations under this Section 7, the Party seeking indemnification must: (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. THIS SECTION STATES THE INDEMNIFIED PARTY’S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY’S TOTAL LIABILITY, REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION 7.

8. Limitation of Liability.

8.1  NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (iii) EXCEPT FOR CUSTOMER PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT EXCEED THE CUMULATIVE FEES INVOICED TO CUSTOMER UNDER THE APPLICABLE SALES ORDER, SOW OR PROFESSIONAL SERVICES ADDENDUM IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

8.2  NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LAW.

9. Confidential Information.

Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may, during the Term and in connection with the MediaPRO Services, disclose non-public information relating to the Discloser’s business that is designated as confidential or reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure (“Confidential Information”) or trade secrets (as defined by applicable law) (“Trade Secrets”). The Recipient agrees: (a) to take reasonable precautions to protect such Confidential Information and any Trade Secrets; and (b) not to use or divulge to any third person any such Confidential Information or Trade Secrets except as allowed pursuant to this MediaPRO Services Agreement and to those of its employees and contractors who need access for purposes consistent with this MediaPRO Services Agreement and who are bound to confidentiality terms with Recipient containing protections no less stringent than those herein. The Discloser agrees that the foregoing will not apply with respect to Confidential Information after five (5) years following the termination of this MediaPRO Services Agreement or for such longer period of time as any information constituting a Trade Secret remains a Trade Secret. Further, the Discloser agrees that the foregoing will not apply to any Confidential Information or Trade Secret the Recipient can document: (i) is or becomes generally available to the public; (ii) was rightfully in its possession or known by it prior to receipt from the Discloser; (iii) was rightfully disclosed to it by a third-party; or (iv) was independently developed without use of any Confidential Information or Trade Secret of the Discloser. A Party may disclose Confidential Information and/or Customer Data of the other Party if it is compelled by law to do so, provided the receiving Party gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure.

10. General Terms.

  1. Notices. MediaPRO may give general notices for MediaPRO Services applicable to all Customers by means of an online notification provided through the MediaPRO Services. Specific notices applicable to Authorized Users of the MediaPRO Services, technical support, system security and other account notices will be provided by e-mail to Customer’s e-mail address on record with MediaPRO. All legal or dispute-related notices will be sent by first class mail or express delivery, if to MediaPRO, Attention: Legal Department, 10021 120th Ave NE, Suite 102, Bothell, WA, 98011 U.S.A, and if to Customer, to Your account representative and address on record with MediaPRO or such other addresses as either Party may designate in writing from time to time.
  2. Compliance with Laws. Each Party agrees to abide by all applicable federal, state, and local laws and regulations in the performance of this MediaPRO Services Agreement. Without limiting the foregoing, Customer will at all times ensure compliance with applicable data protection laws, when using the MediaPRO Services and when instructing MediaPro in configuring and using the MediaPRO Services for Customer. You agree that no legal requirements of Customer will prevent MediaPro from fulfilling its contractual obligations under this MediaPRO Services Agreement or any Sales Order, SOW or Professional Services Addendum in compliance with applicable law.
  3. Governing Law. Unless specifically set forth in the applicable Sales Order, SOW or Professional Services Addendum: (i) any action, claim, or dispute between the Parties will be governed by Washington state law, excluding its conflicts of law provisions, and controlling U.S. federal law; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal courts in King County and Seattle, respectively. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to this MediaPRO Services Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this MediaPRO Services Agreement.
  4. Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated Party (each a “Force Majeure Event”). Each Party will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event continues for more than sixty (60) days, either Party may terminate the Sales Order(s), SOW or Professional Services Addendum affected by the Force Majeure Event upon written notice.
  5. Entire Agreement. This MediaPRO Services Agreement represents the Parties’ entire understanding relating to the MediaPRO Services and supersedes any prior or contemporaneous agreements or understandings regarding the MediaPRO Services. In the event of a conflict between the terms set forth in this document and a contemporaneous or later-dated Sales Order, SOW or Professional Services Addendum, the terms of the contemporaneous or later-dated Sales Order, SOW or Professional Services Addendum will control.
  6. Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement or other business form You may use in connection with the acquisition of MediaPRO Services will affect the rights, duties or obligations of the Parties hereunder, or otherwise modify this MediaPRO Services Agreement, regardless of any failure of MediaPRO to object to such terms, provisions or conditions, or any terms and conditions contained in any other document provided by Customer to the contrary.
  7. Amendment/No Waiver. This MediaPRO Services Agreement may be amended only by written agreement signed by the Parties. If any provision of this MediaPRO Services Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in this MediaPRO Services Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
  8. Assignment. This MediaPRO Services Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Parties without the prior written approval of the non-assigning Party; provided, however that MediaPRO may assign or transfer this MediaPRO Services Agreement in connection with a change in control of MediaPRO, including, without limitation, a merger or acquisition of greater than fifty percent (50%) of the assets of MediaPRO, so long as the assignee agrees in writing to be bound by all terms and conditions of this MediaPRO Services Agreement. Any purported assignment in violation of this Section will be void. In no event may Customer assign or transfer this MediaPRO Services Agreement to a competitor of MediaPRO.

 

Version Date
1.2 February 21 2020 – Current
1.1 January 18 2020 – February 20 2020
1.0 December 11 2019 – January 17 2020
0.9 Feb. 1 2018 – December 10 2019
0.8 Prior – Feb. 1 2018