Cornerstone OnDemand - Growth Edition Subscription Agreement
Cornerstone OnDemand - Growth Edition Subscription Agreement
TERMS AND CONDITIONS
Last updated: January 24, 2017
These Terms and Conditions (“Terms and Conditions”) are made a part of and incorporated by reference into the Growth Edition (“GE”) Subscription Agreement by and between Client and Sonar Limited (“Cornerstone”) (the “Agreement”).
a) “Affiliate” means a party that partially (at least 50%) or fully controls, is partially or fully controlled by, or is under partial (at least 50%) or full common control with, another party.
b) “Client Content” means each and all of the following which is provided by Client: course, learning object, certification, quiz, test, material, instructor-led session, or document.
c) “Client Data” means proprietary or personal data regarding Client or any of its users under the Agreement.
d) "Confidential Information" means any non-public information of Cornerstone or Client disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
e) “Free Trial” means a period, lasting the length of time and for the number of Subscribers specified during sign-up, whereby Cornerstone has allowed Client to use the Software on a provisional basis without payment for such use therefor.
f) “Implementation” means implementation, deployment, and/or training relating to the Software.
g) “Intellectual Property Right” means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.
h) “Order” means a Product purchase in a schedule, statement of work, order, addendum, or amendment signed by both parties (or an online purchase authorized by Client).
i) “Service” means any service rendered by Cornerstone specifically to Client, including, but not limited to: (i) hosting of the Software; (ii) Implementation; (iii) development of Software functionality specially requested by Client; and/or (iv) any consulting service.
j) “Software” means any and all of Cornerstone’s proprietary software offerings, including, without limitation, all updates, revisions, bug-fixes, upgrades, and enhancements thereto, as well as software that has been modified in any way by Cornerstone at the request of a client.
k) “Subscriber” means an employee, member, or customer of Client or one of its Affiliates who is permitted by Client to access the Software.
l) “Subscription” means a subscription purchased by Client for a Subscriber to access the Software.
m) “Term” means the Initial Term plus all Renewal Terms.
2. Support. Please refer to the GE Support Policy and GE Service Level Agreement, which can be found at:
http://www.cornerstoneondemand.com/growth-edition/terms/support-sla, however, for clients who are on the legacy "1.0" version of Growth Edition Software, support and SLA information can be found at the following links: http://www.cornerstoneondemand.com/growth-edition/terms/support and http://www.cornerstoneondemand.com/growth-edition/terms/sla. In no event shall Cornerstone be responsible or liable for any errors, bugs or other problems contained in or originating from hardware or software not provided by Cornerstone, including but not limited to, the ADP Marketplace product.
3. Fees and Payment.
a) Free Trial. If Client is using the Software pursuant to a Free Trial, Cornerstone will begin billing Client on a recurring basis, via the payment method specified during sign-up, immediately following expiration of the Free Trial unless Cornerstone has received written notice of cancellation from Client prior to the Free Trial expiration.
b) Billing. Client shall pay all fees in accordance with the billing frequency set forth in the applicable Order, or as advised in the Software. Fees are subject to an automatic five percent (5%) increase for each automatic renewal of an Order in accordance with Section 7(a) below. Payment of fees will be due at the time of purchase in the case of online orders, otherwise payment will be due within thirty (30) days after the date of the invoice, except where the Agreement expressly prescribes other payment dates. All payments must be made in United States dollars unless another currency is specified, and are exclusive of all applicable taxes and net of applicable withholding taxes. Services are subject to suspension for failure to timely remit payment therefor. Should Cornerstone shut off Client’s access to the Software as a result of non-payment and Client later pays said delinquent fees, Cornerstone reserves the right to charge Client a reinstatement fee before restoring access to the Software. If Client fails to satisfy its tax and/or duty obligations herein, Client shall reimburse Cornerstone upon demand for any taxes and/or duties paid on behalf of Client and shall indemnify and hold Cornerstone harmless against any claim and/or liability (including penalties) resulting from Client’s failure to pay such taxes and/or duties.
4. Cornerstone Obligations. In accordance with the terms and conditions of the Agreement, Cornerstone will: (i) make the Software and Services available on a non-exclusive basis to Client and Subscribers via the Internet; (ii) maintain appropriate safeguards for protection of Client Data, including regular back-ups and security protocols; (iii) not access, modify, or disclose Client Data (except as compelled by law, to prevent or address service or technical issues, or if otherwise permitted by Client). Cornerstone shall process Client Data in accordance with Client’s instructions consistent with and in the scope of the Agreement. Client authorizes Cornerstone to transfer Client Data to Cornerstone Affiliates and/or subcontractors in the United States, Israel, India, New Zealand and/or other locations reasonably required to provide support, perform technical projects or perform other types of services under the Agreement, provided that for EU Client Data either: (i) such locations are recognized by the European Commission as providing adequate data protection; (ii) Cornerstone has executed on behalf of the Client the EU Standard Contractual Clauses with such Affiliates and/or subcontractors (Client hereby grants such proxy to Cornerstone); or (iii) upon Client’s request, the parties execute the EU Standard Contractual Clauses directly with such Affiliates and/or subcontractors.
5. Client Obligations. Client may only use the Software and Services for its own lawful, internal business purposes. Client shall not: (i) use or deploy the Software in violation of applicable laws or these Terms and Conditions; (ii) resell the Software or Services; create any derivative works based upon the Software or Services; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the Software or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv) make the Software or Services available to any unauthorized parties, including without limitation, competitors of Cornerstone; or (v) perform, or release the results of, benchmark tests or other comparisons of the Software or Services with other software, services, or materials. Client will be responsible for Subscribers’ compliance with the Agreement and liable for Subscribers’ breach thereof. Client will ensure that it has obtained all necessary consents and approvals for Cornerstone to access and use Client Data for the purposes permitted under this Agreement, and that the provision of Client Data to Cornerstone hereunder does not violate or infringe any Intellectual Property Right of any third party. If Client is in breach of this section, Cornerstone may suspend Services, in addition to any other rights and remedies Cornerstone may have at law or in equity.
6. Intellectual Property. As between the parties, Cornerstone will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Software and Services. Client retains all ownership rights to Client Data.
7. Term and Termination.
a) Term. The term of the Agreement runs from the first Order Effective Date (as defined in the Agreement) through the expiration of the last Order. Unless otherwise agreed by the parties in writing, each Order will automatically renew for additional, consecutive one-year periods, unless and until a party provides written notice to the other party, at least thirty (30) days prior to the expiration of the Order, that the party does not wish to renew the Order.
b) Termination for Cause. Either party may immediately terminate the Agreement if the other party materially breaches its obligations hereunder, and, where capable of remedy, such breach has not been materially cured within forty-five (45) days of the breaching party’s receipt of written notice describing the breach in reasonable detail.
c) Bankruptcy Events. A party may immediately terminate the Agreement if the other party: (i) has a receiver appointed over it or over any part of its undertakings or assets; (ii) passes a resolution for winding up (other than for a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect and such order is not discharged or stayed within ninety (90) days; or (iii) makes a general assignment for the benefit of its creditors.
d) Effect of Termination. Immediately following termination of the Agreement, Client shall cease using the Software. Within ten (10) business days of termination of the Agreement, Client may request that Client Data be returned at no additional charge in a standard format to be determined by Cornerstone, or as otherwise agreed by the parties. Following termination of the Agreement, Cornerstone will maintain backups of Client Data for no more than thirteen months, after which time all remaining Client Data will be destroyed.
8. Confidentiality. Each of the parties agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of Cornerstone providing Services hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in these Terms and Conditions; (ii) not to use any Confidential Information for any purposes except carrying out such party’s rights and responsibilities under the Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of the Agreement. If a party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.
a) Cornerstone’s Indemnification Obligations.Cornerstone agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) incurred or suffered by Client which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by Client’s authorized use of the Software. The foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with: (i) Client Data; or (ii) unauthorized or negligent use and/or alteration of the Software.
b) Indemnification by Client. Client agrees to indemnify, defend, and hold harmless Cornerstone from and against any and all damages incurred or suffered by Cornerstone which directly relate to or directly arising out of (i) Client Data or Client Content; (ii) Client’s breach of the Agreement; (iii) Client’s breach of any representation or warranty; (iv) Client’s non-compliance with any applicable law; or (v) Client’s non-payment hereunder. The foregoing provisions of section 9(b)(i) shall not be applicable to the extent the damages relate to or arise from Cornerstone’s use of Client Data or Client Content in violation of the Agreement.
c) Indemnification Procedures. To obtain indemnification, indemnitee shall: (i) give written notice of any claim promptly to indemnitor; (ii) give indemnitor, at indemnitor’s option, sole control of the defense and settlement of such claim, provided that indemnitor may not, without the prior consent of indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases indemnitee of all liability; (iii) provide to indemnitor all available information and assistance; and (iv) not take any action that might compromise or settle such claim.
d) Infringement Cures. Should the Software or any part thereof become, or in Cornerstone’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party Intellectual Property Right, then Cornerstone shall, at its sole option and expense: (i) procure for Client the right to use and access the infringing or potentially infringing item(s) of the Software free of any liability for infringement; or (ii) replace or modify the infringing or potentially infringing item(s) of the Software with a non-infringing substitute otherwise materially complying with the functionality of the replaced system. If (i) and (ii) are not reasonably available in Cornerstone’s reasonable opinion, Cornerstone may terminate the Agreement in which case Client shall receive a refund of prepaid, unearned fees.
e) Exclusive Remedies. The remedies set forth in this section shall be exclusive with respect to any infringement claim hereunder.
10. Warranties. Each party represents and warrants to the other party that, as of the date hereof: (i) it has full power and authority to execute and deliver the Agreement; (ii) the Agreement has been duly authorized and executed by an appropriate employee of such party; (iii) the Agreement is a legally valid and binding obligation of such party; and (iv) its execution, delivery and/or performance of the Agreement does not conflict with any agreement, understanding or document to which it is a party. CORNERSTONE WARRANTS THAT ANY AND ALL SERVICES PROVIDED BY IT HEREUNDER SHALL BE PERFORMED IN A PROFESSIONAL MANNER CONSISTENT WITH PREVAILING INDUSTRY STANDARDS, AND THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN MATERIAL ACCORDANCE WITH THE AGREEMENT AND APPLICABLE DOCUMENTATION PROVIDED BY CORNERSTONE. CLIENT’S EXCLUSIVE REMEDY FOR ANY BREACH OF THESE WARRANTIES SHALL BE TO TERMINATE THE AGREEMENT FOR CAUSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CORNERSTONE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (EXCEPT FOR THE INFRINGEMENT INDEMNIFICATION PROVIDED HEREUNDER) AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT UNDERSTANDS THAT THE SOFTWARE IS SOFTWARE-AS-A-SERVICE. ACCORDINGLY, SOFTWARE ENHANCEMENTS MAY BE MADE BY CORNERSTONE ON A PERIODIC BASIS, AND CLIENT WILL ONLY HAVE ACCESS TO THE MOST RECENT VERSION OF THE SOFTWARE MADE AVAILABLE TO CLIENT.
11. Liability. CORNERSTONE’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO CORNERSTONE HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES AGREED UPON BETWEEN CLIENT AND CORNERSTONE ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CORNERSTONE WILL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, INTERRUPTION OF BUSINESS, PROVIDING REPLACEMENT SOFTWARE (EXCEPT AS SET FORTH IN SECTION “RIGHT TO PROCURE OR SUBSTITUTE”), OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Communications. Neither party shall issue any publicly disseminated statement using the name of the other party as a customer or provider without the other party’s consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Cornerstone may mention Client by name during investor-related communications and list Client’s name and logo alongside Cornerstone’s other clients on the Cornerstone website and in marketing materials, unless and until Client revokes such permission.
13. Miscellaneous Provisions.
a) Governing Law; Jurisdiction. If Client is an entity registered in: (i) New Zealand or Australia, the Agreement will be governed by and construed in accordance with the laws of New Zealand, and the courts of New Zealand shall have exclusive jurisdiction in any proceedings relating to it; (ii) the United States, the Agreement will be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America, without regard to conflict of law principles, and the state and federal courts of the State of California located in the County of Los Angeles shall have exclusive jurisdiction in any proceedings relating to it; (iii) any jurisdiction other than New Zealand, Australia, or the United States, the Agreement will be governed by and construed in accordance with the laws of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction in any proceedings relating to it.
b) Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation, acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
c) Counterparts; Facsimile. Orders may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
d) Entire Agreement. These Terms and Conditions, together with the Order and any attachments, contain the entire understanding of the parties in respect of the Agreement’s subject matter and supersede all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. Any schedules and exhibits to the Agreement constitute a part thereof as though set forth in full therein. Purchase orders submitted by Client are for Client’s internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force and effect.
e) Modifications. Cornerstone may modify these Terms and Conditions at any time, and such modification shall be effective thirty (30) days from the posting by Cornerstone of the updated terms at the above URL. Client’s continued use of the Software following any amendment of these Terms and Conditions will signify Client’s assent to and acceptance of the revised terms. Any modification, amendment or addendum to an Order must be in writing and signed by both parties or when Cornerstone has enabled online purchasing via the Cornerstone website or Client’s tenant, via online consent and acceptance.
f) Assignment. Client may not assign the Agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without Cornerstone’s prior written consent; provided, however, Client, without Cornerstone’s consent, may assign the Agreement to an Affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such party, where the responsibilities or obligations of Cornerstone are not increased by such assignment and the rights and remedies available to Cornerstone are not adversely affected by such assignment. Subject to that restriction, the Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.
g) No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
h) Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in these Terms and Conditions, Cornerstone owns the aggregated, anonymized, and statistical data (“Aggregated Data”) derived from the operation of the Software, and nothing herein shall be construed as prohibiting Cornerstone from utilizing the Aggregated Data for business and/or operating purposes, provided that Cornerstone does not share with any third party Aggregated Data which reveals the identity of Client, Client’s users, or Client’s Confidential Information.
i) Suggestions. Cornerstone shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Software any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or its Subscribers relating to the operation of the Software.
j) Integration with Third-Party Offerings. The Software may contain features designed to operate with third-party applications. To use such features, Client may be required to obtain access to such applications from a third-party provider. Client shall not be entitled to a refund, credit, or other compensation if Cornerstone ceases to offer certain features because the application provider ceases to make such application available for interoperation with the Software.
k) Minimum Technical Requirements for Software Use. Client understands that, in order to use the Software, a Subscriber must utilize a web browser (preferably Cornerstone’s qualified browser, which can be found at http://www.cornerstoneondemand.com/growth-edition/terms/supported-browsers). The qualified browsers for legacy Growth Edition 1.0 clients is http://www.cornerstoneondemand.com/growth-edition/terms/supportedbrowsers.
l) Severability. If any provision of the Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of the Agreement shall remain in full force and effect.
m) Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed. Notices to Cornerstone shall be delivered to Sonar Limited, c/o Cornerstone OnDemand, 1601 Cloverfield Blvd., Suite 620S, Santa Monica, CA 90404, attn.: General Counsel.
n) Independent Contractors. Client and Cornerstone are independent contractors, and nothing in the Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Client and Cornerstone. Each party understands that they do not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
o) Headings and Capitalized Terms. The headings of the sections of these Terms and Conditions are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe their meaning, scope or intent. Capitalized terms used, but not otherwise defined, herein shall have the same meanings assigned to those terms in the Agreement.
p) Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under the Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
q) Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.