This Master Customer Agreement (“the MCA”) governs Gnowbe’s provision of software and services, and Customer’s use thereof, as set forth in an applicable order form executed between Gnowbe and the party placing an order for software and services. By executing an order form that incorporates this MCA, the Customer agrees to the terms of this MCA. Together, the MCA and any applicable order form(s) constitute the “Agreement”. If the individual signing the order form for the Customer is signing on behalf of a company or legal entity, this individual represents that he or she has the authority to bind that company or legal entity to this Agreement.
1. SCOPE OF AGREEMENT
This MCA governs Gnowbe’s provision of Gnowbe’s platform and services, as defined herein, pursuant to one or more ordering documents (each such document, an “Order Form”) detailing the services purchased, each of which shall incorporate this MCA by reference. In order to be binding, an Order Form must be signed by both parties. The parties may add Order Forms from time to time during the term of the agreement.
- “Authorized Users” means the individuals authorized by Customer and are registered on Gnowbe’s platform to use the Licensed Materials pursuant to the terms of this Agreement. “Authorized Users” may include, for example, employees, partners, consultants, contractors and agents of Client, and third parties with which Client transacts business.
- “Distribution Partners” means the individuals and/or companies that are authorized by Gnowbe to sell and distribute the Gnowbe Licensed Materials.
- “Content” means the interactive, multi-media micro-learning and ongoing knowledge programs and educational content, including team chats and individual learning journeys, made available through the Software that Customer licenses from Gnowbe pursuant to one or more Order Forms.
- “Documentation” means the standard user documentation/manual/guide for the Licensed Materials that Gnowbe makes available to the Customer through Gnowbe’s secure website or other means.
- “Error Corrections” means patches and bug fixes developed by Gnowbe for Errors in the Licensed Materials.
- “Error” refers to any material error or defect in the Licensed Materials that causes the Licensed Materials not to substantially conform in all material respects with the Documentation.
- “Intellectual Property Rights” means patent rights (including without limitation patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Licensed Materials” the Software and the Documentation.
- “License Term” means the term of the license for certain Licensed Materials set forth in the applicable Order Form.
- “Order Form” means a written ordering document that is executed by both parties and describes the Gnowbe services purchased and sets forth the terms, fees and billing terms. Each Order Form will incorporate this MCA by reference. The parties may add Order Forms from time to time during the terms of the Agreement.
- “Services” means Content customization and other services as may be provided by Gnowbe to Customer under this Agreement.
- “Software” means Gnowbe’s software application/platform for micro-learning and ongoing knowledge as specified in the applicable Order, in executable code form, provided to Customer under this Agreement, including any Updates thereto.
- “Update” means Error Corrections, minor enhancements and extensions or other changes to the Licensed Materials that are generally made available by Gnowbe at no additional cost to customers.
- Grant of License. Conditioned on Customer’s compliance with the terms and conditions of this Agreement (including, without limitation, payment of the applicable fees), Gnowbe grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the applicable License Term to install and use the Licensed Materials set forth in the applicable Order only for Customer’s business use as outlined in the Order. For each Licensed Material, Customer is authorized to have up to the total the number of Authorized Users set forth in the applicable Order or additional Authorized Users as agreed upon in the applicable Order. As a condition to each Authorized Person’s use of the Licensed Materials, Gnowbe may require such Authorized Person to execute a user agreement acknowledging Gnowbe’ (and its licensors’, suppliers’, and content providers’) rights and the Authorized Persons’ obligations under this Agreement.
- License Restrictions. Customer has no right to transfer, sublicense or otherwise distribute the Licensed Materials to any third party. Except as expressly authorized in this Agreement or by Gnowbe in writing, Customer will not copy the Licensed Materials, in whole or in part. Customer will not modify or lease, externally distribute, lend or rent the Licensed Materials, make the Licensed Materials available on a service bureau, time sharing, rental, application services provider, hosting or other computer services basis to third parties, or otherwise make the functionality of the Licensed Materials available to third parties. Customer acknowledges that the Licensed Materials constitute and contain trade secrets of Gnowbe and its licensors, suppliers, and content providers and, in order to protect such trade secrets and other interests that Gnowbe and its licensors, suppliers, and content providers may have in the Licensed Materials, Customer agrees not to disassemble, decompile or reverse engineer the Licensed Materials nor permit any third party to do so, except to the extent such restrictions are prohibited by law.
- Limited Rights. Customer’s rights in the Licensed Materials will be limited to those expressly granted in this Agreement. Gnowbe reserves all rights and licenses in and to the Licensed Materials not expressly granted to Customer under this Agreement.
- Time-Out Functionality. Gnowbe reserves the right to include and set a time out device or similar function in the Licensed Materials that will cause the Software to automatically send warnings, limit functionality, or disable the Licensed Materials from functioning at the end of the License Term (the “Time-Out Functionality”). Customer expressly agrees not to tamper with or disable any such Time-Out Functionality, and Gnowbe will have no liability to Customer for any business interruption or loss of data caused by the Time-Out Functionality.
- Usage Data. Customer will ensure that the Software used by Customer (or any of the Authorized Users) will have external network access to enable the Licensed Materials to send periodic alerts to Gnowbe’s technical support team regarding Customer’s usage of the Licensed Materials (“Usage Data”). In the event such Usage Data is not reliably reaching Gnowbe, Customer will promptly assist Gnowbe to troubleshoot and remediate the issue so as to enable the alerts. Such Usage Data shall be deemed Confidential Information of Customer, provided however Customer agrees that Gnowbe may use the Usage Data to troubleshoot and monitor the Licensed Materials and to enhance, improve, and develop current and future Licensed Materials and services and to verify Customer’s compliance with this Agreement.
4. CUSTOMER’S RESPONSIBILITIES AND ACKNOWLEDGEMENTS
Certain parts of the Licensed Materials may be available only to Customer and its Authorized Users who have registered with (using such person’s email address or other unique identification information) Gnowbe. Customer and each Authorized User may not provide or use a password, email address, or any other information of anyone else in connection with Customer’s and the Authorized User’s use of the Licensed Materials. Customer and each Authorized User shall provide true, accurate, current and complete information about that person when that person registers with Gnowbe and maintain and promptly update that information to keep it true, accurate, current and complete. Each Customer and the Authorized Users is responsible for maintaining the confidentiality of that person’s account and password and for restricting access to that person’s electronic device(s) containing the Licensed Materials and shall accept responsibility for all activities that occur under that user’s account, including use of the Licensed Materials.
Customer and the Authorized Users may only use the Licensed Materials for lawful purposes and in accordance with this Agreement and the Documentation. Gnowbe reserves the right to refuse service, terminate accounts, or cancel orders at any time in its sole discretion, including, without limitation, based on any activity by Customer or any Authorized User in violation of these terms or applicable laws and regulations. Customer shall comply with all applicable laws and regulations and shall ensure that the Authorized Persons do the same.
With respect to any Content that Gnowbe has obtained/licensed from third parties, Gnowbe is a distributor (not a publisher) of such Content. Accordingly, Gnowbe has no editorial control over such third-party Content. Any opinions, advice, statements, services, offers or other information or content expressed or made available by third parties, including those made in the third-party Contents are those of the respective author(s) or publisher(s) and not of Gnowbe. Gnowbe does not guarantee the accuracy, completeness, truthfulness, or usefulness of all or any portion of any third-party Content or any services or offers made by third parties, nor will Gnowbe be liable for any loss or damage caused by Customer’s reliance on information contained in any third-party Contents, or Customer’s (including its Authorized Persons’) use of services offered, or such person’s acceptance of any offers made, through the third-party Content. The Content may contain links to other Internet sites and third-party resources. Gnowbe does not assume any responsibility or liability for communications or materials available through such linked sites. These links are provided for Customer’s (and the Authorized Users’) convenience only. Customer and its Authorized Users are solely responsible for understanding any terms and conditions that may apply when they visit or place an order for products or services through, or otherwise use a third-party site.
Customer represents, warrants and covenants that Customer (including its Authorized Persons) will not use the Licensed Materials: (a) to infringe the intellectual property rights, proprietary rights, or rights of publicity or privacy of any third party; (b) to violate any applicable law, statute, ordinance or regulation; (c) to disseminate information or materials in any form or format (“Customer Information”) that is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; or (d) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Customer, not Gnowbe, remains solely responsible for all Customer Information that Customer (or any Authorized Person) uploads, posts, emails, transmits or otherwise disseminates using, or in connection with, the Licensed Materials. Customer acknowledges that Customer’s (and the Authorized Persons’) transmission of any Customer Information through the Licensed Materials is at Customer’s (and the Authorized Persons’) sole risk, and Customer will be solely responsible for any damage to any party resulting therefrom.
Customer agrees that each Authorized Person must have a current, valid, and documented relationship with Customer. Customer shall ensure that Authorized Persons comply with this Agreement and with all applicable laws and regulations. Customer shall be responsible to Gnowbe and its licensors, suppliers, and content providers for any acts or omissions of the Authorized Persons, including, without limitation, any failure by any Authorized Person to comply with the terms of this Agreement and the Documentation.
- Consulting/Development Services. In the event Customer elects to have Gnowbe provide Customer with certain consulting/development services, such services will be provided under a separate consulting services agreement. For example, Customer may request that Gnowbe customize the Licensed Materials for Customer’s specific needs.
- Training. In the event Customer elects to have Gnowbe provide Customer with training for the Licensed Materials, such training will be provided under a separate training services agreement.
- Fees and Expenses. Customer will pay Gnowbe (or its representative) the fees on payment terms as specified in each Order. Payment shall be made by Customer within seven (7) days of the invoice date. Provision of service by Gnowbe shall commence after payment has been made by the Client. Payment obligations are non-cancellable and are non-refundable through the term of the contract. Failure to pay fees and charges when due will result in a late charge at a rate of one percent (1%) per month on all amounts due and not paid within seven (7) days of the date of Gnowbe’s invoice until the time of payment. The immediately foregoing sentence shall survive termination or expiration of this Agreement. The Client’s failure to pay amounts when due constitutes a material breach. Customer will also reimburse Gnowbe for any reasonable and customary out-of-pocket travel and lodging expenses incurred by Gnowbe in connection with performing services under this Agreement pursuant to Customer’s request. At Customer’s request, Gnowbe will furnish Customer with reasonable documentation for all such expenses.
- Taxes. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Customer’s receipt or use of the Licensed Materials, except for taxes based on Gnowbe’s net income. In the event that Gnowbe is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Gnowbe. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish Gnowbe with written documentation of all such tax payments, including receipts.
- Audit. Upon at least ten (10) days prior written notice, Gnowbe may electronically audit Customer’s use of the Licensed Materials to ensure that Customer is in compliance with the terms of this Agreement. Customer will use best efforts to provide Gnowbe with electronic access to the relevant Customer records and facilities. If an audit reveals that Customer has used the Licensed Materials in excess of the scope authorized in the applicable Order, then Gnowbe may invoice Customer any underpaid fees, and Customer will promptly pay Gnowbe for such underpaid fees based on Gnowbe’s license fees in effect at the time the audit is completed.
- Definition. “Confidential Information” means all technical and non-technical information being disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), including without limitation, product information, plans and pricing, financials, marketing plans, business strategies, customer and user information, data, research and development, Licensed Materials, APIs, specifications, designs, formulae, algorithms, and know-how, either designated as, or which would reasonably be understood to be, confidential or proprietary. The Confidential Information of Gnowbe includes the Licensed Materials and applicable license keys, and the terms and conditions of this Agreement. The Receiving Party will: (a) hold the Disclosing Party’s Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who have previously agreed (e.g. as a condition to their employment or agency) to be bound by terms substantially similar to those of this Agreement; (c) use such Confidential Information only for the purposes for which it was disclosed; and (d) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the Disclosing Party.
- Exclusions. The restrictions set forth in Section 6.1 above will not apply to Confidential Information to the extent it (a) was in the public domain at the time of disclosure; (b) became publicly available after disclosure without breach of this Agreement by the Receiving Party; (c) was lawfully received by the Receiving Party from a third party without such restrictions; (d) was known to the Receiving Party without such restrictions prior to its receipt from the Disclosing Party; (e) was independently developed by the Receiving Party without reference to such Confidential Information; (f) was generally made available to third parties by the Disclosing Party without such restriction; or (g) is required to be disclosed by the Receiving Party pursuant to judicial order or other compulsion of law, provided that the Receiving Party will provide to the Disclosing Party prompt notice of such order and comply with any protective order imposed on such disclosure.
- Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party 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 contest such order or requirement.
8. PROPRIETARY RIGHTS
Customer expressly acknowledges that, as between Gnowbe (and its licensors, suppliers, and content providers) and Customer, Gnowbe (and its licensors, suppliers, and content providers) own all worldwide right, title and interest in and to the Licensed Materials, and all Intellectual Property Rights worldwide in the foregoing. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Licensed Materials as delivered to Customer. Customer will reproduce such notices on all copies it makes of the Licensed Materials.
- No Warranty. Customer acknowledges and agrees that the Licensed Materials are provided to Customer on an AS IS basis, with no warranty. GNOWBE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GNOWBE OR ELSEWHERE WILL CREATE ANY WARRANTY.
- Disclaimer. Gnowbe shall have no obligation or liability for any of the following: (a) use of the Licensed Materials in conjunction with software or hardware products that are not approved by Gnowbe; (b) modifications to the Licensed Materials made by any party without Gnowbe’s express written authorization; (c) Customer’s use of the Licensed Materials other than as authorized in this Agreement or as provided in the Documentation; or (d) Customer’s use of other than the most current version of the Licensed Materials or any error corrections or updates thereto provided by Gnowbe. Gnowbe does not warrant that: (a) the Licensed Materials will meet Customer’s requirements; (b) the Licensed Materials will operate in the combinations that Customer may select for use, that the operation of the Licensed Materials will be Error-free or uninterrupted; or (c) that all Errors will be corrected.
10. LIMITATION OF LIABILITY
- No Liability. GNOWBE AND ITS DISTRIBUTION PARTNERS SHALL HAVE NO LIABILITY WITH RESPECT TO THE LICENSED MATERIALS’ FAILURE TO PERFORM/FUNCTION IN ACCORDANCE WITH GNOWBE’S PUBLISHED SPECIFICATION AND DOCUMENTATION UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER ANY OTHER THEORY. THE LICENSED MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE.
- Exclusion of Damages. IN NO EVENT WILL GNOWBE AND/OR ITS DISTRIBUTION PARTNERS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED MATERIALS OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT GNOWBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Basis of Bargain. The parties expressly acknowledge and agree that Gnowbe has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Gnowbe and Customer and form a basis of the bargain between the parties.
11. TERM AND TERMINATION
- Term. This Agreement will begin on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall remain in effect for the duration stated in the Order Form(s) and will automatically renew unless either party provides the other party with written notice of its intent not to renew the agreement prior to the start of the following billing period.
- Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. In addition, Gnowbe may terminate this Agreement, at any time, in the event that Customer breaches any payment-related provision and fails to cure such breach within (10) days following notice thereof from Gnowbe.
- Effect of Termination. Upon the expiration or termination of this Agreement pursuant to Section 11.1, Customer shall retain the rights granted in Section 3.1 with respect to Licensed Materials licensed hereunder for the remainder of the applicable License Term, provided that Customer complies with the terms, conditions and restrictions of this Agreement. Upon any other termination of this Agreement, all licenses granted to Customer hereunder will terminate immediately and Customer will promptly return to Gnowbe the applicable Licensed Materials and all copies and portions thereof, in all forms and types of media, and provide Gnowbe with an officer’s written certification, certifying to Customer’s compliance with the foregoing, and the payment dates of all amounts payable to Gnowbe will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been provided previously.
- Survival. All provisions of this Agreement which by their specific terms or by necessary implication are to survive the expiration or termination of this Agreement shall so survive. Without limiting the generality of the foregoing, Sections 6 (Payment), 7 (Confidentiality), 8 (Proprietary Rights), 9 (Warranty; Disclaimer), 10 (Limitation of Liability), 11 (Term and Termination), and 12 (General) will survive the termination of this Agreement or of any individual Licensed Materials license granted hereunder.
- Case Study and Logo Usage. The Customer agrees to complete a case study with Gnowbe within three months from the execution of this Order Form. The Customer hereby grants to Gnowbe and Gnowbe accepts a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to incorporate or otherwise utilize the information provided by the Customer in the case study for any manner and via any media Gnowbe chooses, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.The Customer authorizes Gnowbe to use the Customer’s name and logo to identify the Customer as a Gnowbe Customer and to associate the Customer with the case study.
- Assignment. Neither party may assign this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s express prior written consent, which shall not unreasonably be withheld. Any attempt to assign this Agreement without such consent, will be null and of no force nor effect. Subject to the foregoing, this Agreement will bind and insure to the benefit of each party’s successors and permitted assigns.
- Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of Singapore excluding that body of laws known as conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in Singapore, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
- Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise
- Severability; Waiver. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
- Notices. Any notices required or permitted to be given by either party hereto to the other shall be mailed to the address stated on the Order Form and shall be sent via electronic mail, facsimile, certified mail, or reputable commercial carrier (e.g., DHL, Federal Express, etc.), and in each instance will be deemed given upon confirmed receipt. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified above.
- Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.
- Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
- Export Control. Customer agrees to comply fully with all relevant export laws and regulations (“Export Laws”), to ensure that neither the Licensed Materials, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
- Entire Agreement. This Agreement, including its exhibits and Orders executed by the parties, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Without limiting the foregoing, any terms and conditions contained in any order acknowledgement or purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken, unless expressly agreed to in writing by Gnowbe.
- Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.