This Master Subscription Agreement (the “Agreement”) governs the acquisition and use of Stronger International, Inc’s services.
This Agreement presents the terms and conditions under which Stronger International, Inc. (“Stronger”) agrees to grant the Customer (also known as “You” or “Your”) access to and use of Stronger’s subscription service offerings, and, if applicable, to provide Customer with certain managed services and/or professional services (collectively, the “Subscription Services”). Stronger and Customer may also be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” Subscription Services are listed in one or more Stronger ordering documents signed by the Parties (each a “Sales Order”). This Agreement will also govern any trial of Stronger’s Subscription Services.
Customer indicates its acceptance of this Agreement when it executes a Sales Order or enters into a Free Trial which references this Agreement. If you are entering into this Agreement on behalf of a legal entity, such as the company you work for, then you represent to Stronger that you have the authority to bind the Customer to this Agreement. If you do not have that authority to enter into this Agreement, then you may not indicate acceptance and neither you nor the Customer may use or access any of Stronger’s Subscription Services.
You may not access the Subscription Services if you, or the Customer, are a direct competitor of Stronger. In addition, you or the Customer may not access the Subscription Services for purposes of internal benchmarking or for any competitive purpose.
Stronger and Customer hereby agree as follows:
1.1 Scope.This Agreement and all executed Sales Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Sales Order.
1.2 Procurement and Provisioning by Affiliates. “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control of the Customer, where control means the ownership of a majority share of the stock, equity or voting interests of such entity. You may procure Subscription Services under this Agreement for Your own account and on behalf of one or more Customer Affiliates. You are responsible for the acts and omissions of Customer Affiliates under any Sales Order pursuant to which the Customer Affiliate receives the benefit of the Subscription Services, but is not a signatory. Additionally, Customer Affiliates may procure Subscription Services directly under this Agreement pursuant to a Sales Order executed by such Customer Affiliate. Customer Affiliates who sign a Sales Order will be deemed to be the Customer hereunder and are solely responsible for their own performance or non-performance thereunder.
1.3 Authorized Users. During the Subscription Term set forth in each Sales Order, Stronger will make the Subscription Services available to Customer and its authorized Affiliates, employees, agents or contractors (“Authorized Users”), for access and use by such Authorized Users solely for Your internal business purposes in accordance with the terms of this Agreement and the respective Sales Order(s). You are responsible for use of the Subscription Services by Authorized Users and any entity who accesses the Subscription Services with an Authorized User’s account credentials.
1.4 Usage Rights. The number of Authorized Users assigned to each of the Subscription Services shall be defined in a Sales Order (each Subscription Service having a defined “Number of Authorized Users”). Stronger understands and acknowledges that the Number of Authorized Users stated in a Sales Order is an estimate and that the actual number of Authorized Users will fluctuate during a Subscription Term. To that end, Stronger and Customer agree that within a twenty-one (21) day window of the annual anniversary date of the Sales Order Effective Date, either: (i) Customer will run a report to count the number of Authorized Users and report the same to Stronger; or (ii) Stronger will run a report to count the number of Authorized Users and report the same to Customer, for the previous year. If at any point in time during the Subscription Term, the count of Authorized Users assigned to a Subscription Service exceeds the Number of Authorized Users stated in the Sales Order for that Subscription Service, Customer agrees to remit additional fees as stated within the Sales Order.
1.5 Free Trials. Stronger may make one or more Subscription Services available to You on a trial basis, free of charge (“Free Trial”). The Free Trial shall end the earlier of: (i) the end of the trial period; or (ii) the start date of any Sales Order; or (iii) termination by You or Stronger at our sole discretions. Additional trial terms and conditions may appear on the Subscription Services Free Trial access web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO ONE OR MORE SUBSCRIPTION SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
Notwithstanding Section 6 (Warranty Representations; Subscription Services Warranties; Warranty Remedies; Warranties Disclaimer), during the Free Trial the Subscription Services are provided “as-is” without any warranty.
2.1 Restrictions. Customer will not, and will ensure that its Authorized Users do not, directly or indirectly: (i) make the Subscription Services available to anyone other than Authorized Users or use the Subscription Services for the benefit of any unrelated third-party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Subscription Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (iv) modify, translate or create derivative works based on the Subscription Services or remove any proprietary notices or labels from the Subscription Services; (v) use or access the Subscription Services to build or support, and/or assist a third-party in building or supporting products or services competitive to the Subscription Services; or (vi) include the Subscription Services in a service bureau or outsourcing offering.
2.2 Removal of Content. Customer may, at its option, provide its own content for one or more of the Subscription Services. If Stronger is required by a licensor to remove Customer content, or if we receive information that any Customer content may violate applicable law or third-party rights, we may so notify You to promptly remove such content from the Subscription Services. If You do not take the required action in accordance with the above, Stronger may disable the applicable content, or suspend the Subscription Service containing such content, until the potential violation is resolved.
2.3 Legal Disclaimer. The Subscription Services are intended to assist You in providing general training and awareness activities. You acknowledge and understand that Stronger is not a law firm and the Subscription Services are provided for general educational purposes only and do not constitute legal advice. The Subscription Services should be used in the manner Customer deems most appropriate for reaching its business goals.
2.4 Suspension. Stronger may immediately suspend Your account and access to the Subscription Services if: (i) You fail to make payment due within 10 business days after Stronger has provided Customer with written notice of such failure; or (ii) You violate Section 2.1 (Restrictions), Section 2.2 (Stronger Use Policies), Section
2.4 (Removal of Content), or Section 9 (Confidential Information). Any suspension by Stronger of the Subscription Services under the preceding sentence will not relieve Customer of its payment obligations hereunder.
3.1 Ownership of Subscription Services. You acknowledge that the Subscription Services are offered on an online subscription basis. Stronger retains and owns all right, title, interest, and all intellectual property rights in and to the Subscription Services, including any software or documents related to or provided with the Subscription Services and all intellectual property rights and derivatives, modifications, refinements or improvements thereto. From time to time, You or Your Authorized Users may submit to Stronger comments, questions, enhancement requests, suggestions, ideas, or other information related to the Subscription Services (“Feedback”). You agree that Stronger has all rights to use and incorporate Feedback into the Subscription Services without restriction or payment to You. No rights are granted to You other than as expressly set forth herein.
3.2 License Grant. Stronger acknowledges that some Subscription Services may be installed on premises by You. Subject to this Agreement, Stronger hereby grants to You a non-exclusive, non-transferable, limited license, without right to sub-license, for the Subscription Term, to access and use the Stronger Subscription Services solely for Your internal business operations, and subject to the terms specified in the applicable Sales Order. Stronger reserves all other rights not expressly granted in this Agreement.
3.3 Customer Data. You own any content, data, information or material originated by You or that You provide in the course of using the Subscription Services (“Customer Data”). You will be solely responsible for: (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and used by You or Your Authorized Users within the Subscription Services; and (ii) all applicable terms and conditions related to procurement and use of Customer Data. Stronger expressly acknowledges that Customer Data is Customer Confidential Information.
3.4 Statistical Information. Stronger may monitor Your use of the Subscription Services and compile anonymous summaries of Customer Data, with other data in an aggregate and anonymous manner, to derive statistical and performance information related to the provision and operation of the Subscription Services and may make such information publicly available, provided that such information does not include any data that would enable the identification of Customer or Customer Data, or the disclosure of Customer Confidential Information. Stronger retains all rights, title and interest in and to such statistical and performance information.
4.1 Fees. Customer will pay all fees set forth in the Sales Orders and any fees invoiced pursuant to this Agreement. All fees are non-cancelable and non-refundable, except as expressly specified in the Sales Order. Any fees paid pursuant to a particular or specific Sales Order will not offset any fees due under any other Sales Order.
4.2 Taxes and Currency. All fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Subscription Services. If Stronger has the legal obligation to pay or collect taxes for which You are responsible under this Section 2.2, Stronger will invoice You and You will pay that amount unless You provide Stronger with a valid tax exemption certificate authorized by the appropriate taxing authority. You are not responsible for any taxes based on Stronger’s net income or property. Except as otherwise specified in a Sales Order, all fees due hereunder will be paid in U.S. Dollars.
4.3 Invoicing and Payment Terms. If the payment terms are not specified in a Sales Order, all amounts are due and payable on a “net 30” basis (the “Payment Terms”) based upon the date You receive the invoice. If You provide payment card information to Stronger, You authorize Stronger to charge such credit card for all Subscription Services listed in the Sales Order. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. You are responsible for providing complete and accurate billing and contact information to Stronger and notifying Stronger of any changes to such information as needed to process Sales Orders.
5.1 Agreement Term. This Agreement commences on the date You accept it (the “Effective Date”) and continues until all Subscription Services granted in accordance with this Agreement have expired or been terminated (the “Agreement Term”). If You elect to use the Subscription Services for a Free Trial period and do not purchase a Subscription Services before the end of that period, this Agreement will terminate at the end of the Free Trial period. Notwithstanding the foregoing, if immediately following the expiration of any Sales Order, the Parties are negotiating a renewal of such Sales Order, the Agreement Term will remain in effect for a reasonable period of time to allow the Parties to effect such renewal.
5.2 Subscription Term and Renewal. The term of each Subscription Service shall be as specified in the applicable Sales Order (the “Subscription Term”). Except as otherwise specified in a Sales Order, the Subscription Services will automatically renew for 1 year, unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The per-unit pricing during any renewal term will increase by up to 8% above the applicable pricing in the prior term, unless Stronger provides You notice of different pricing at least 60 days prior to the applicable renewal term.
Renewal of promotional or one-time priced Subscription Services will be at Stronger’s list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which the volume for any Subscription Service has decreased from the prior term will result in re-pricing at renewal.
5.3 Termination for Cause. In the event of a material breach of this Agreement, or of any Sales Order, by either Party, the non-breaching Party will have the right to terminate the applicable Sales Order(s) for cause if such breach has not been cured within 30 days after written notice from the non-breaching Party specifying the breach. Additionally, either Party may terminate this Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4 Effect of Termination. If Stronger terminates a Sales Order for Customer’s uncured material breach: (i) all fees set forth in the terminated Sales Order will be immediately due and payable; (ii) all rights granted thereunder will immediately terminate; and (iii) if such terminated Sales Order includes fees for usage of the Subscription Services in excess of the Usage Rights, such fees are also immediately due and payable. If You terminate a Sales Order for Stronger’s uncured material breach, You will be entitled to a pro-rata refund for prepaid fees for the Subscription Services not performed as of the date of termination. Upon completion of the Agreement Term, all rights to access and use the Subscription Services will terminate and Stronger will irretrievably delete and destroy Customer Data and, if requested in writing, Stronger will certify to such destruction in writing.
5.5 Data Portability and Deletion. Stronger will make all Customer Data available to You for export or download, as provided in the Subscription Services documentation, at any time during the Agreement Term. Your Customer Data will be available to you 30 days after the termination or expiration of this Agreement. After such 30-day period, Stronger will have no obligation to maintain or provide Customer Data to you and we will delete or destroy all copies of the Customer Data on Stronger’s systems, or otherwise in our possession or control, unless legally prohibited.
5.6 Survival. The following Sections of the Agreement will survive termination of the Agreement: Section 2.1 (Restrictions), Section 3 (Ownership: Subscription Services; Customer Data; Statistical Information), Section 4 (Fees; Taxes and Currency; Invoicing and Payment), Section 6.5 (Warranties Disclaimer), Section 8 (Limitation of Liability), Section 9 (Confidential Information), Section 11 (Compelled Disclosure), and Section 12 (General Terms).
6.1 Warranty Representations. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
6.2 Subscription Services Warranties. Stronger warrants the Subscription Services, under normal use, will: (i) perform materially in accordance with the applicable Subscription Services documentation; (ii) not materially decrease the overall functionality in accordance with the applicable Subscription Services documentation in effect at the time of the Sales Order(s); and (iii) be provided in a manner consistent with generally accepted industry standards.
6.3 Subscription Services Warranty Limitations. Stronger shall not warrant the Subscription Services for: (i) any defects attributable to improper operation, use, misuse or abuse; (ii) changes in supporting third-party software products that may adversely affect software functionality; (iii) any imprecisions in regard to the recording of courseware completion data where completion faults are less than three (3%) of total completion records.
6.4 Warranty Remedies. You will notify Stronger of any warranty deficiencies within 30 days of the performance of the relevant Subscription Services, and Your exclusive remedy will be the re-performance of the deficient Subscription Services. If Stronger cannot re-perform such deficient Subscription Services as warranted, You will be entitled to terminate the deficient Subscription Services under Section 6.2 above and recover a pro-rata portion of the fees paid to Stronger for such deficient Subscription Services, and such refund will be Stronger’s entire liability.
6.5 WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Stronger AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Stronger DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. Stronger DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT Stronger WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. Stronger DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
7.1 Stronger. Stronger will defend You against any claim brought against You by a third-party alleging the Subscription Services as provided by Stronger directly infringe the intellectual property rights of the claimant and will pay You for finally-awarded damages and costs and Stronger-approved settlements of the claim. Stronger’s obligations to defend or indemnify will not apply to the extent that a claim is based on: (i) Customer Data, Customer’s or a third-party’s technology, software, materials, data or business processes; (ii) a combination of the Subscription Services with non-Stronger products or services; or (iii) any use of the Subscription Services not in compliance with this Agreement. Stronger may, in its discretion and at no cost to You: (a) modify the Subscription Services to avoid infringement; or (b) terminate Your subscriptions for the affected Subscription Services and refund You any related prepaid fees for the remainder of the Subscription Term.
7.2 Customer. You will defend Stronger against any claim brought against Stronger by a third-party alleging: (i) Customer Data infringes the intellectual property, privacy or other rights of the claimant; or (ii) Your use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations, or infringes the claimant’s intellectual property rights, and will pay Stronger for finally-awarded damages and costs and Customer-approved settlements of the claim.
7.3 Procedure. As a condition to the indemnifying Party’s obligations under this Section 7, the Party seeking indemnification must: (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. THIS SECTION STATES THE INDEMNIFIED PARTY’S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY’S TOTAL LIABILITY, REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION 7.
NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (iv) EXCEPT FOR CUSTOMER PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE FEES INVOICED TO CUSTOMER UNDER THE AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may, during the Agreement Term and in connection with the Subscription Services, disclose non-public information relating to the Discloser’s business that is designated as confidential or reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure (“Confidential Information”). The Recipient agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information except as set forth herein and to those of its employees and contractors who need access for purposes consistent with this Agreement and who are bound to confidentiality terms with Recipient containing protections no less stringent than those herein. The Discloser agrees that the foregoing will not apply with respect to Confidential Information after 3 years following the termination of the Agreement or any Confidential Information the Recipient can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third-party; or (d) was independently developed without use of any Confidential Information of the Discloser.
During the Agreement Term, Stronger shall maintain and conform to a security program in accordance with industry standards that is designed to ensure the security of Customer Data and protect against unauthorized disclosure or access of Customer Data. Such security program shall include the implementation of appropriate administrative, technical and physical safeguards. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Stronger personnel except: (i) as required by law or court order, or (ii) as You expressly permit in writing.
A Party may disclose Confidential Information and/or Customer Data of the other Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure.
12.1 Notice. Stronger may give general notices for Subscription Services applicable to all customers by means of a notice on the Awareness Portal thru which the Subscription Services are accessed. Specific notices applicable to Authorized Users of the Subscription Services, technical support, system security and other account notices will be provided by e-mail to Customer’s e-mail address on record with Stronger. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Stronger, attention Legal Department, at 10021 120th Ave NE, Suite 102, Bothell, WA, U.S.A, and if to Customer, to Your account representative and address on record with Stronger or such other addresses as either Party may designate in writing from time to time.
12.2 Compliance with Laws. Each Party agrees to abide by all applicable federal, state, and local laws and regulations in the performance of this Agreement.
12.3 Governing Law. Unless specifically set forth in the applicable Sales Order: (i) any action, claim, or dispute between the Parties will be governed by Washington state law, excluding its conflicts of law provisions, and controlling U.S. federal law; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal courts in King County and Seattle, respectively. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.4 Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either Party may cancel unperformed Subscription Services upon written notice.
12.5 Entire Agreement. This Agreement represents the Parties’ entire understanding relating to the Subscription Services and supersedes any prior or contemporaneous agreements or understandings regarding the Subscription Services. In the event of a conflict between this Agreement and a contemporaneous or later-dated Sales Order, the terms of the contemporaneous or later-dated Sales Order will control.
12.6 Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement or other business form You may use in connection with the acquisition of Subscription Services will affect the rights, duties or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure of Stronger to object to such terms, provisions or conditions.
12.7 Amendment / No Waiver. The Agreement may be amended only by written agreement signed by the Parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
12.8 Assignment. No joint venture, partnership, employment, or agency relationship exists between Stronger and Customer as a result of the Agreement or use of the Subscription Services. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Parties without the prior written approval of the non-assigning Party, except that either Party may assign or transfer this Agreement in connection with a merger or acquisition of all or substantially all of the assets of the assigning company (other than to a direct competitor of the non-assigning Party and provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning Party with prompt written notice of assignment. Any purported assignment in violation of this section will be void.