WHEN YOU CLICK A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR WHEN YOU EXECUTE AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU, THE COMPANY ENTERING THIS AGREEMENT (THE “CUSTOMER”), AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
This Services Agreement (the “Agreement”), constitutes a binding agreement between Endeavor Retirement, LLC (“Company”) and the Customer identified in an order document that references this Agreement (“Order Form”) or the Customer who accepts the terms of this Agreement via click-through acceptance (the earlier of the date of the Order Form or the date of click through acceptance, the “Effective Date”). Customer wishes to procure from Company the services described in this Agreement and Company wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Services. The services include web-based training, content, and other materials which are designed to provide Customer with ERISA plan management resources and materials (collectively the “Services”) during the Term (as defined in Section 5).
1.2 Service License & Services Description. Subject to, and conditioned on, Customer’s compliance with the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable limited right to access and use the Services solely for Customer’s internal business purposes during the Term and solely in accordance with the terms and conditions herein, including the license restrictions included in Section 6. Customer may make a reasonable number of copies of Company Material (as defined in Section 6.1) to support its customers. Customer is prohibited from distributing any Company Materials directly to customers or to third parties. Company Materials are Company’s Confidential Information. Except as expressly granted in this Section 1.2, Company retains all right, title and interest in and to the Services, including any derivatives of the Services. Company reserves the right, in its sole discretion, to make any changes to the Services or the Company Materials (as defined in Section 6.1) that Company deems necessary or useful.
(a) Users. Customer may authorize certain individuals to access the Services (each a “User”). Customer is responsible for the actions of its Users.
(b) Third-Party Materials. The Services may operate in conjunction with technology, materials, software, infrastructure, data, content, equipment, or components that are provided or managed by Customer or by a third party and are not provided by, managed, controlled, or proprietary to Company (“Third-Party Materials”). Company is not responsible for Third-Party Materials or the interoperability of Third-Party Materials with the Services.
(c) User Data. Company will not process or store any personally identifiable information about Customer’s clients, employees, or contractors. Customer is prohibited from uploading, transmitting, or otherwise disclosing any personally identifiable information to Company. Company will not provide any advice, materials, or other information that is specific to any individual.
2. Customer Obligations.
2.1 Customer Resources and Cooperation. Customer will timely provide such cooperation and assistance as Company reasonably requests to enable Company to perform the Services. Without limiting the foregoing, Customer will timely: (a) perform all obligations identified as customer responsibilities; and (b) provide the Customer materials and other resources as may be required.
2.2 Effect of Customer Failure or Delay. Company is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
2.3 Account. Customer is responsible for creating an account within the Services and ensuring that (a) Customer’s account registration information is complete and accurate; and (b) Customer’s account credentials are confidential. Customer will notify Company immediately of any unauthorized use of Customer’s account or account credentials, or any other known or suspected breach of the security of Customer’s account. Customer is responsible for the activity that occurs within Customer’s account and for the actions or omissions of Customer’s employees, contractors, or agents, whether such person is or was acting within the scope of their employment, engagement, or agency relationship. Customer is prohibited from and will not permit competitors of Company to access the Services for any purpose.
3. Trial Services. If a trial period is indicated on an Order Form, Company will provide Customer with a temporary account to one or more Services (a “Trial Account”). The Trial Account will be accessible for the trial period set forth in the Order Form, beginning on the Activation Date (as defined in Section 4), or if no trial period is stated, the Trial Account period will be thirty (30) days from the Activation Date. DURING THE TRIAL PERIOD, THE TRIAL ACCOUNT AND ASSOCIATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. DURING THE TRIAL ACCOUNT PERIOD, IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, OR SUPPLIERS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $100.
4. Fees; Payment Terms; Taxes. Customer will pay the fees for the Services as set forth in the Order Form (“Fees”). Following execution of the Order Form, Company will activate or otherwise make available the Services listed in the Order Form (“Activation Date”). Beginning on the Activation Date, Customer will be invoiced for the Fees per the invoice schedule in the Order Form. One-time fees and fees for professional services (if any) will be invoiced per the terms of the Order Form, or the applicable statement of work (if any). Customer will pay Fees within thirty (30) days of the date of the invoice. If Customer disputes any Fees, Customer must notify Company within 120 days of the date of invoice. Invoices not disputed within 120 days from the date of invoice will be deemed accepted by Customer. Company may charge a late fee of 1.5% per month on any Fees not paid when due. Company may suspend Customer’s access to the Services in the event Customer fails to pay the Fees when due. Company may increase Fees upon each Renewal Term. Company will provide thirty (30) days’ prior written notice of any such increase in Fees. All Fees payable by under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, service, use and excise taxes, taxes assessed on the use of software, or any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Company’s income.
5. Term & Termination. The Agreement will begin on the Effective Date and will remain in effect for the term specified in the Order Form or, if no term is specified, 12 months (“Initial Term”). The Initial Term will renew automatically for additional, successive 12-month terms (each a “Renewal Term”), unless Company or Customer provides the other party with written notice of non-renewal at least 90 days prior to the end of the Initial Term or the applicable Renewal Term. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and such breach remains uncured for a period of 30 days following the non-breaching party’s written notice thereof. Company may suspend Customer’s access to the Services in the event of a breach of this Agreement and will not be liable for any damages resulting from such suspension. The Initial Term plus any Renewal Term are, collectively, the “Term.” Upon termination or expiration of this Agreement for any reason, all rights or licenses granted herein will terminate. Customer will (a) immediately cease all use of the Services and will permanently delete or erase the Company Materials and Company’s Confidential Information from its computer systems, except, in each case, to the extent that Customer requires or will require such Company Materials or Company’s Confidential Information to comply with applicable law, so long as Customer retains all such materials as Company Confidential Information subject to Section 7. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 6, Section 7, Section 8, Section 9, and Section 10.
6. Intellectual Property Rights.
6.1 Company Materials. Company retains all right, title, and interest in and to (a) the Services, (b) Company information, data, documents, downloadable materials, guides, templates, training materials, specifications, inventions, technologies, know how, works, software, hardware, systems, methods, processes, descriptions, or plans that Company or its subcontractors conceives, discovers, designs, develops, reduces to practice, prepares, makes, modifies, or improves, (c) all works, inventions, and other subject matter incorporating, based on or derived from any Company Materials, including all customizations, enhancements, improvements and other modifications thereof (and (a), (b), and (c) the “Company Materials”). All intellectual property and proprietary rights in the Company Materials are and will remain the property of Company. Other than the limited rights and licenses granted herein, Company retains all right, title and interest and Customer receives no right or license with respect to the Company Materials.
6.2 Company License Restrictions. Customer shall not, and shall not permit any other person to, access or use the Company Materials except as expressly permitted by this Agreement. For purposes of clarity, and without limiting the generality of the foregoing, with respect to the Company Materials Customer will not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Company Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Company Materials to any other person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Company Materials, including any copy thereof; (e) use any Company Materials in a manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right of Company or of any third party; (f) use the Company Materials for purposes of competitive analysis, the development of a competing system, product, or service, or any other purpose that is to Company’s commercial disadvantage; (g) otherwise use the Company Materials beyond the scope of the license granted hereunder; or (h) use the Company Materials for any unlawful purpose.
6.3 Customer Materials & License. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to Customer’s proprietary software, hardware, systems, and technologies, that are provided or made available to Company or any of its subcontractors by or on behalf of Customer in connection with this Agreement (“Customer Materials”), including all intellectual property rights therein. Customer expressly reserves all other rights in and to the Customer Materials. Customer hereby grants to Company a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely as necessary to perform the Services.
6.4 Third-Party Materials. All right, title, and interest in and to the Third-Party Materials, including all intellectual property rights therein, are and will remain with their respective third-party rights holder’s subject to the terms and conditions of the applicable third-party license agreements. Customer has no right or license with respect to any Third-Party Materials except as expressly licensed under such third-party license agreements.
7.1 Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, training materials, guides, resources, trade secrets, know-how, business operations, plans, strategies, customers, technology, software, pricing, or other information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, the Company Materials are the Confidential Information of Company, the Customer Materials are the Confidential Information of Customer.
7.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3 Protection of Confidential Information. As a condition to being provided with Confidential Information, the Receiving Party will, for a period of two years from the disclosure of the Confidential Information: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by this Agreement, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3; (c) safeguard the Confidential Information from unauthorized access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ noncompliance with, the terms of this Section 7.
7.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by applicable law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
8. DISCLAIMER OF WARRANTIES. THE SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, COMPLY WITH APPLICABLE LAW OR WILL RESULT IN COMPLIANCE WITH APPLICABLE LAW, ARE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR THAT THE SERVICES ARE OR WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS.”
9. Limitations of Liability. IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) LOSS OF USE, BUSINESS, REVENUE, PROFIT, DATA, OR DIMINUTION IN VALUE; (B) ANY INABILITY TO USE THE SERVICES OR NON-PERFORMANCE IN WHOLE OR IN PART; OR (C) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, OR SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID TO COMPANY FOR THE APPLICABLE SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE DATE UPON WHICH THE DAMAGE AROSE.
10. Force Majeure. In no event will Company be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
11.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11.2 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
11.3 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Company’s prior written consent, which consent Company shall not unreasonably withhold or delay; provided that, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will not be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Company’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 11.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
11.4 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
11.5 Use of Customer Name and Logo. Customer hereby grants to Company the right to use Customer’s name and/or logo on Company’s website or in sales literature.
11.6 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in a writing that is identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.7 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. Any legal suit, action or proceeding arising out of or related to this Agreement or its subject matter shall be instituted exclusively in the federal courts of the United States or the courts of the State of Oregon in each case located in the city of Portland and in Multnomah County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
11.8 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
11.9 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or Section 7 may cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the nonbreaching party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.