ACHIEVEIT TERMS & CONDITIONS
PLEASE READ THESE SUBSCRIPTION TERMS CAREFULLY AND PRINT A COPY FOR YOUR RECORDS.
AchieveIt agrees to provide the services set forth on the Sales Order to Customer, which Services may include AchieveIt’s proprietary software that is described on the Sales Order that is made available by AchieveIt online via a URL as well as implementation, consulting or support services (the “Services”) solely for Customer’s own internal business purposes subject to the terms of this Agreement. All rights not expressly granted to Customer are reserved by AchieveIt and its licensors. The Services may be utilized by the number of Users set forth on a Sales Order. “Users” means a designated individual that cannot be shared by more than one individual but can be transferred or reassigned to a new designated individual replacing a former individual no longer using the Services.
Customer is permitted to store, manipulate, analyze, reformat, print, and display the content, data and information included as part of the Services (“Content”) only for Customer’s internal business use. Unauthorized use, resale, or commercial exploitation of the Services or the Content in any way is expressly prohibited. Customer agrees not to reverse engineer the Services or Content, or access the Services or Content in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of the Services, or (iii) copy any ideas, features, functions, or graphics of the Services or Content. Customer shall not copy, license, sell, transfer, make available, distribute, or assign the Services, this Agreement or the Content to any third‐party. Customer shall not create Internet “links” to the Services or “frame” or “mirror” any Content contained on, or accessible from, the Services on any other server or Internet‐based device. AchieveIt alone (and its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Services, Content, and any suggestions, ideas, enhancement requests, feedback, or other information provided by Customer relating to the Services or the Content. The AchieveIt name and logo are trademarks of AchieveIt, and no right or license is granted to use them.
FEES; EXPENSES; LATE PAYMENT; BILLING:
The usage fees, as well as any other up‐front fee, are detailed on the Sales Order, exclusive of all taxes and begin on the date of Customer’s acceptance of this Agreement. Reasonable and necessary out‐of‐pocket expenses associated with the delivery of on‐site services, if any, including transportation to/from airports, to/from Customer’s locations (such as taxis, trains, rental cars, and air travel costs), business meals, and hotel expenses will be invoiced monthly in arrears. Payment is due within 30 days after the date of the invoice. AchieveIt charges and collects in advance for the use of the Services, payable annually by check or credit card. Customer will be invoiced and billed upon each renewal of the Agreement. Payments shall be made in US dollars and are non-cancelable and non-refundable. Any amounts not paid by the due date will be subject to a late fee equal to one and one-half (1.5%) percent per month, or the maximum amount allowed by law if less. Customer will be liable for all costs of collection of undisputed overdue amounts including, without limitation, all court costs and attorneys’ fees AchieveIt incurs.
Unless earlier terminated as set forth below, the term of this Agreement shall continue for the “Initial Term” set forth on the Sales Order. The Agreement will automatically renew for the same duration or time period as the “Initial Term” unless either party gives 90 days’ advance written notice of its intent not to renew. AchieveIt may increase the fees for such renewal terms upon prior written notice to Customer. Either party may terminate this Agreement by providing 30 days’ written notice upon the material breach of this Agreement by the other party if such breach or violation is not cured during such notice period. In the event of such a termination, AchieveIt shall not be liable to Customer nor any third‐party for any termination of Customer’s account or access to the Services. Upon expiration or termination of the Agreement, all rights to access or use the Services terminate, and, so long as Customer is not in breach of this Agreement, AchieveIt will make available to Customer a file of the Customer Data within 30 days of termination notice if Customer so requests. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive the termination or expiration of this Agreement.
Each party may disclose to the other party certain Trade Secrets and Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Trade Secrets” means information that is a trade secret under law; “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; “Proprietary Information” means Trade Secrets and Confidential Information; the “Disclosing Party” refers to the party disclosing Proprietary Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipient’s employees, providers or agents. Recipient agrees to hold the Proprietary Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement. Customer acknowledges that the Services and Content are the Proprietary Information of AchieveIt or its licensors and other providers. The obligations in this Section shall continue for so long as such information constitutes Proprietary Information. The foregoing obligations shall not apply if and to the extent that Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach of this Agreement. Customer acknowledges and agrees that AchieveIt may have to provide Customer’s Proprietary Information or other data or information if AchieveIt or its licensors or providers are ordered by an administrative agency or other governmental body of competent jurisdiction to disclose such information.
NO BUSINESS ASSOCIATE RELATIONSHIP:
Customer represents and warrants that it will not provide AchieveIt with any Protected Health Information (“PHI”) as that term is defined under the Health Insurance Portability and Accountability Act and regulations promulgated thereunder (“HIPAA”). Because AchieveIt does not receive or process any PHI in the normal course of business in providing the Services to Customer or any of AchieveIt’s customers generally, AchieveIt is not a Business Associate under HIPAA. Customer will indemnify and hold AchieveIt harmless from and against any and all losses arising out of Customer’s failure to comply with the warranty in this Section 7.
ACCOUNT INFORMATION AND DATA:
All data submitted by Customer to AchieveIt (“Customer Data”), whether posted by Customer or by third parties, shall remain the sole property of Customer or such third parties, as applicable, unless specifically notified in advance. Customer grants to AchieveIt the non‐exclusive, worldwide, right to use, copy, store, transmit and display Customer Data solely to the extent necessary to provide the Services. Customer, not AchieveIt, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data, and AchieveIt shall not be responsible or liable for any action taken by the Customer that results in the deletion, correction, destruction, damage, loss, or failure to store any data.
Users will be required to use login information to access the Services and comply with this Agreement. Customer will manage and administer the login information for its designated Users. Customer is responsible for all uses of the login information and all actions of any individual using login information, including without limitation any breach by Customer or Users of the terms and conditions of this Agreement. Customer will: (1) protect the confidentiality of all login information, and (2) notify AchieveIt of any breach of the confidentiality of any login information. Customer will not provide login information to any person that is not authorized to access and use the Services.
Each party shall indemnify and hold the other party, its licensors, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim alleging that use of the Customer Data (in the case of Customer as the indemnifying party) or use of the Services (in the case of AchieveIt as the indemnifying party) infringes the rights of, or has caused harm to, a third party; provided that the indemnified party (i) gives written notice of the claim promptly to the indemnifying party (ii) gives the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability and such settlement does not affect the indemnified party’s business); (iii) provides to the indemnifying party all available information and assistance; and (iv) has not compromised or settled such claim. AchieveIt shall have no indemnification obligation, and Customer shall indemnify AchieveIt pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Services with any of Customer’s products, service, hardware, or business process(s).
WARRANTY; DISCLAIMER OF WARRANTIES:
AchieveIt warrants that the Services will perform substantially in accordance with its existing user guides with a minimum of 98% uptime availability (except for regularly scheduled and emergency maintenance). Customer’s sole remedy and AchieveIt’s sole liability for any failure of the Services to conform with the foregoing warranty is to use commercially reasonable efforts to cure such failure. EXCEPT FOR THE FOREGOING WARRANTY, ACHIEVEIT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, INTERNET AVAILABILITY, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES OR ANY CONTENT; ACHIEVEIT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR‐FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES OR CONTENT OR ANY INFORMATION PROVIDED BY ACHIEVEIT WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS, OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER UNDERSTANDS THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS PARARAPH, THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS; AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON‐INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ACHIEVEIT AND ITS LICENSORS. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. AchieveIt is not responsible for and delays, delivery failures, or other damage resulting from such problems.
LIMITATION OF LIABILITY:
EXCEPT ARISING OUT OF A BREACH OF SECTION 2, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT ARISING OUT OF A BREACH OF SECTION 2, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
Customer agrees to provide AchieveIt with complete and accurate billing and contact information on the Sales Order. Customer agrees to update this information within 30 days of any change to it. Customer grants AchieveIt the right to use the Customer’s name and logo in AchieveIt promotional and advertising material. This Agreement shall be governed by Georgia law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia. No text or information set forth on any other purchase order, preprinted form, or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and AchieveIt as a result of this agreement or use of the Services. The failure of AchieveIt to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AchieveIt in writing. This Agreement comprises the entire agreement between Customer and AchieveIt and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein or to existing services or licenses that were previously purchased by Customer from AchieveIt, including without limitation the terms of request for proposal or AchieveIt’s response thereto or any agreement between the parties for existing services. Customer will not assign or transfer this Agreement, by operation of law or change in control or otherwise, without AchieveIt’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Notwithstanding anything set forth herein to the contrary, AchieveIt may modify or update these Terms by providing electronic notice to Customer. A Sales Order may be executed in any number or counterparts, each of which shall be deemed a part of the same original.
All notices or other communications which may be required by either party to the other party pursuant to this Agreement shall be in writing and shall be hand delivered (including delivery by courier so long as a receipt or confirmation of delivery is obtained), sent by recognized overnight delivery service (such as FedEx® or UPS®), or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid. Customer’s initial notice address is the billing address set forth in the Sales Order. AchieveIt’s notice address is as follows:
Chief Executive Officer / Chief Financial Officer
AchieveIt Online, LLC
6595 Roswell Road, Suite G2155
Atlanta, GA 30328
Each notice which shall be mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee, or at such time as delivery is refused by the addressee upon presentation; provided, however, that notices sent by mail shall be deemed received on the third business day following the date such notice is deposited in the mail.