THE LITMOS TERMS AND CONDITIONS HAVE CHANGED AS OF MAY 15, 2019 TO THE BELOW. Litmos is a division of Callidus Software Inc., an SAP America, Inc. company, d/b/a “CallidusCloud”, and proudly offers the brands Litmos, Litmos Heroes, and BridgeFront.
Please read the terms carefully. By selecting “I AGREE”, or accepting an Order Form that incorporates these terms by reference, you confirm your agreement to these terms on behalf of the organization you are registering, and you confirm that you personally are authorized to accept these terms on that organization’s behalf. This is a binding legal agreement.
GENERAL TERMS AND CONDITIONS FOR CALLIDUS CLOUD SERVICES (“GTC”)
Capitalized terms used in this document are defined in the Glossary.
2. USAGE RIGHTS AND RESTRICTIONS
2.1 Grant of Rights.
(a) Callidus grants to Customer a non-exclusive, non-transferable and world-wide right to use the Cloud Service (including its implementation and configuration), Cloud Materials (as applicable), Callidus Content and Documentation solely for Customer’s and its Affiliates’ business operations. Permitted uses and restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
(b) Callidus further grants to Customer solely during the Subscription Term, the right to download and use the Learning Resources or portions thereof in combination with Customer’s (non-Callidus) learning material, with the express obligation that Customer remove and return or destroy all Learning Resources upon expiration or termination of the Subscription Term; Callidus may audit Customer’ compliance with this post-Subscription Term obligation once annually for the two years following expiration or termination of the Agreement. Further, Callidus grants to Customer solely during the Subscription Term, the right to use the Callidus Content on a third party Learning Management System provided that Callidus does not warrant and bears no responsibility for availability of the Callidus Content on a third party LMS.
2.2 Authorized Users.
Customer may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access credentials for the Cloud Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service. Customer is responsible for breaches of the Agreement caused by Authorized Users.
2.3 Acceptable Use Policy.
With respect to the Cloud Service, Customer will not:
(a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
(b) transmit any content or data that is unlawful or infringes any intellectual property rights, or
(c) circumvent or endanger its operation or security.
(d) use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
2.4 Verification of Use.
Customer will monitor its own use of the Cloud Service and report any use in excess of the Usage Metrics and volume. Callidus may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
2.5 Suspension of Cloud Service.
Callidus may suspend or limit use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. Callidus will promptly notify Customer of the suspension or limitation. Callidus will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
2.6 Third Party Web Services.
The Cloud Service may include integrations with web services made available by third parties (other than Callidus’ Affiliates) that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third party web services are not part of the Cloud Service and the Agreement does not apply to them.
2.7 Mobile Access to Cloud Service
If applicable, Authorized Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
2.8 On-Premise Components.
The Cloud Service may include on-premise components that can be downloaded and installed (including updates) by Customer. The System Availability SLA does not apply to these components.
2.9 Third-Party Application.
If Customer installs or enables a third-party application for use with a Cloud Service, Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants Callidus permission to allow the provider of that third-party application to access Customer Data as required for the interoperation of the third-party application and the Cloud Service.
2.10 Free Trials.
Should Customer agree to the Agreement as part of a free trial, then this section 2.10 shall apply. When Customer first agrees to these terms, Callidus allows for a fourteen (14) day free trial (“Free Trial Period”) of the Cloud Services for no more than twenty-five (25) Authorized Users to use the Cloud Services on behalf of Customer with no payment obligation and no obligation of continued subscription past the Free Trial Period. Callidus shall have the right to immediately suspend Cloud Services upon expiration of Customer’s Free Trial Period. To avoid any such interruption of Cloud Services, Customer may elect to continue using the Cloud Services after its Free Trial Period by accepting Callidus’ written Order Form, which will set forth the Cloud Services, the Subscription Term, the number of Users, pricing, fees, and reference to this GTC. Customer acknowledges and agrees that this GTC will govern Customer’s use of Cloud Services during a Free Trial Period and any paid Subscription Term for which Customer accepts an Order Form. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE CLOUD SERVICES DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME CLOUD SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT CUSTOMER DATA WILL BE PERMANENTLY LOST.
3. CALLIDUS RESPONSIBILITIES
Callidus provides access to the Cloud Service as described in the Agreement. Callidus reserves the right to modify the course offerings and content of the online course library at any time.
Callidus provides support for the Cloud Service as referenced in the Order Form.
Callidus uses reasonable security technologies in providing the Cloud Service. As a data processor, Callidus will implement technical and organizational measures referenced in the Order Form to secure personal data processed in the Cloud Service in accordance with applicable data protection law.
(a) The Cloud Service and Callidus Policies may be modified by Callidus. Callidus will inform Customer of modifications by email, the support portal, release notes, Documentation or the Cloud Service. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Cloud Service, which Customer may use subject to the then-current Supplement and Documentation.
(b) If Customer establishes that a modification is not solely an enhancement and materially reduces the Cloud Service, Customer may terminate its subscriptions to the affected Cloud Service by providing written notice to Callidus within thirty days after receipt of Callidus’ informational notice.
Callidus or Callidus’ Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Cloud Materials.
Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Cloud Service and Consulting Services. Analyses may be used for the following purposes:
a) product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new Callidus products and services,
b) improving resource allocation and support,
c) internal demand planning,
d) training and developing machine learning algorithms,
e) improving product performance,
f) verification of security and data integrity
g) identification of industry trends and developments, creation of indices and anonymous benchmarking
4. CUSTOMER AND PERSONAL DATA
4.1 Customer Data.
Customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants to Callidus (including Callidus’ Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the Cloud Service.
4.2 Personal Data.
Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
Customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service. Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval from Callidus.
4.4 Access to Customer Data.
(a) During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Callidus and Customer will find a reasonable method to allow Customer access to Customer Data.
(b) Before the Subscription Term expires, if available, Customer may use Callidus’ self-service export tools (as available) to perform a final export of Customer Data from the Cloud Service. Alternatively, Customer may request data export through support ticket.
(c) At the end of the Agreement, Callidus will delete the Customer Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
(d) In the event of third party legal proceedings relating to the Customer Data, Callidus will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
5. CONSULTING SERVICES
If applicable, Callidus will provide the Consulting Services, as mutually agreed by Customer and Callidus under a Statement of Work (“SOW”); such SOW(s) shall be subject to the terms of (i) the GTC and (ii) the SAP Consulting Services Supplemental Terms and Conditions to the GTC available at http://www.sap.com/agreements-cloud-services-consulting-supplement (“Consulting Services Supplement”). Each reference to SAP America, Inc., SAP SE, or SAP in the Consulting Services Supplement will be deemed to mean Callidus for purposes of a SOW. The defined term “Consulting Services” under the Consulting Services Supplement shall mean solely those services set forth in the SOW; the defined terms “Scope Document” and “Service Description” are inapplicable to the SOW. In the event of conflict, the terms of the SOW shall supersede the terms of the Consulting Services Supplement, which in turn shall supersede the terms of the GTC.
6. FEES AND TAXES
6.1 Fees and Payment.
Customer will pay fees as stated in the Order Form. Customer will be invoiced on Start Date (as provided in the applicable Order Form) for Year One. For each Subsequent Year and Renewal Term (if any), Customer will be invoiced in advance. Notwithstanding anything to the contrary, by electing credit card payment and inputting its billing and credit card information into the Callidus system (via a link sent by Callidus), Customer’s credit card on file will be charged in advance the annual fees for the Subscription Term (including any agreed-to renewal term), provided that Customer remains responsible for fees. Callidus will also invoice Customer (or if applicable, charge Customer’s credit card) at the time Customer adds any enhanced or additional Cloud Services. Callidus may provide invoices to an email address provided by Customer. Fees for non- recurring services will be invoiced by Callidus on a one-time basis and paid by Customer upon commencement of the Subscription Term. Customer will reimburse Callidus for all pre-approved (by Customer) and appropriately documented travel and related expenses incurred by Callidus in performing any support for the Cloud Service. After prior written notice, Callidus may suspend Customer’s use of the Cloud Service until payment is made. Customer cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable.
6.2 Excess Use
Customer’s use of the Cloud Service is subject to the Agreement, including the Usage Metrics and their volume stated in the Order Form. Any use of the Cloud Service that exceeds this scope will be subject to additional fees. Fees accrue from the date the excess use began. Callidus may invoice and Customer will pay for excess use based on applicable pricing in the Order Form. Customer will execute an additional Order Form to document subscriptions for additional Usage Metrics and their volume.
Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. Customer is responsible for all taxes, other than Callidus’ income and payroll taxes. Customer must provide to Callidus any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If Callidus is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Callidus for those amounts and indemnify Callidus for any taxes and related costs paid or payable by Callidus attributable to those taxes.
6.4 Fee Increases
At the beginning of each renewal term, Callidus may increase fees to reflect annual increases in consumer prices or costs. This increase will not exceed the greater of the percentage stated in the most recent consumer price index selected by Callidus or 3.3% per annum. The increase is applied on a cumulative, year-over-year basis beginning on either the start of the preceding term or date of last increase, whichever is later. Not raising fees is not a waiver of Callidus’ right to do so. Callidus may increase fees if Customer elects to reduce the Cloud Service, Usage Metrics or volume for any renewal term.
Customer will pay to Callidus all fees due within thirty (30) days of date of invoice. Unpaid fees will accrue interest at the maximum legal rate. Customer purchase orders are for administrative convenience and not a condition of payment. Payment is not dependent upon completion of any implementation or other services.
7. PERSONAL DATA
Personal Data Processing Agreement for SAP Clouds Services (“DPA”) available at http://www.sap.com/agreements-cloud-data-processing shall apply to Personal Data (as defined under DPA) processed by Callidus and its Subprocessors (as defined under DPA) in connection with its provision of the Cloud Service. Each reference to SAP America, Inc., SAP SE, or SAP in the DPA shall be deemed to mean Callidus for purpose of the Order Form between Callidus and Customer.
8. TERM AND TERMINATION
(a) Customer’s initial Subscription Term will begin on the Start Date (as provided in the applicable Order Form) and will be effective until the End Date (as provided therein), unless Customer is otherwise notified by Callidus (“Initial Term”). “Year One” within the Initial Term is the period beginning on the Start Date and ending the day before the first anniversary of the Start Date. Each “Subsequent Year” within the Initial Term begins (commencing with the first anniversary of the Start Date) on the applicable anniversary of the Start Date and ends on the day before the next anniversary of the Start Date. If the initial Subscription Term is not provided under an Order Form, the Initial Term of such Order Form shall be one (1) Year from the Start Date or Effective Date of the Order Form (as provided in such Order Form).
(b) The Initial Term and any renewals and extensions will automatically renew for terms equal in length to the immediately preceding term (each a “Renewal Term”). Auto-renewal will not occur if Customer notifies Callidus of its intention not to renew at least one month in advance of the expiration of the current term, or Callidus notifies Customer of its intention not to renew at least six months prior to the expiration of the current term.
A party may terminate the Agreement:
(a) upon thirty days written notice of the other party’s material breach unless the breach is
cured during that thirty day period,
(b) as permitted under Sections 3.4(b), 9.3(b), or 10.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or
(c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 13 or 14.6.
8.3 Refund and Payments.
For termination by Customer or an 10.1(c) termination, Customer will be entitled to:
(a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and
(b) a release from the obligation to pay fees due for periods after the effective date of termination.
8.4 Effect of Expiration or Termination.
Upon the effective date of expiration or termination of the Agreement:
(a) Customer’s right to use the Cloud Service (including accessing course library and Callidus Content) and all Callidus Confidential Information will end,
(b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and
(c) termination or expiration of the Agreement does not affect other agreements between the parties.
Sections 1, 6, 8.3, 8.4, 8.5, 10, 11, 12, 13, and 14 will survive the expiration or termination of the Agreement.
9.1 Compliance with Law.
Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
(a) in the case of Callidus, the operation of Callidus’ business as it relates to the Cloud Service, and
(b) in the case of Customer, the Customer Data and Customer’s use of the Cloud Service.
9.2 Good Industry Practices.
Callidus warrants that it will provide the Cloud Service:
(a) in substantial conformance with the Documentation; and
(b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.
Customer’s sole and exclusive remedies and Callidus’ entire liability for breach of the warranty under Section 9.2 will be:
(a) the re-performance of the deficient Cloud Service, and
(b) if Callidus fails to re-perform, Customer may terminate its subscription for the affected Cloud Service. Any termination must occur within three months of Callidus’ failure to re-perform.
9.4 Warranty Exclusions.
The warranties in Section 9.2 will not apply if:
(a) the Cloud Service is not used in accordance with the Agreement or Documentation,
(b) any non-conformity is caused by Customer, or by any product or service not provided by Callidus, or
(c) the Cloud Service was provided for no fee.
Except as expressly provided in the Agreement, neither Callidus nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Callidus or product roadmaps in obtaining subscriptions for any Cloud Service.
10. THIRD PARTY CLAIMS
10.1 Claims Brought Against Customer.
(a) Callidus will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Cloud Service infringes or misappropriates a patent claim, copyright, or trade secret right. Callidus will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Callidus enters into) with respect to these claims.
(b) Callidus’ obligations under Section 10.1 will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of the Cloud Service in conjunction with any product or service not provided by Callidus, or (iii) use of the Cloud Service provided for no fee.
(c) In the event a claim is made or likely to be made, Callidus may (i) procure for Customer the right to continue using the Cloud Service under the terms of the Agreement, or (ii) replace or modify the Cloud Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Callidus or Customer may terminate Customer’s subscription to the affected Cloud Service upon written notice to the other.
10.2 Claims Brought Against Callidus.
Customer will defend Callidus against claims brought against Callidus and its Affiliates and subcontractors by any third party related to Customer Data.
Customer will indemnify Callidus against all damages finally awarded against Callidus and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
10.3 Third Party Claim Procedure.
(a) The party against whom a third party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
(b) The party that is obligated to defend a claim will have the right to fully control the defense.
(c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
10.4 Exclusive Remedy.
The provisions of Section 10 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
11. LIMITATION OF LIABILITY
11.1 Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
(a) the parties’ obligations under Section 10.1(a) and 10.2,
(b) unauthorized use or disclosure of Confidential Information,
(c) either party’s breach of its data protection and security obligations that result in an
unauthorized use or disclosure of personal data,
(d) death or bodily injury arising from either party’s gross negligence or willful misconduct, or
(e) any failure by Customer to pay any fees due under the Agreement.
11.2 Liability Cap.
Subject to Sections 11.1 and 11.3, the maximum aggregate liability of either party (or its respective Affiliates or Callidus’ subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
11.3 Exclusion of Damages.
Subject to Section 11.1:
(a) neither party (nor its respective Affiliates or Callidus’ subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and
(b) Callidus will not be liable for any damages caused by any Cloud Service provided for no fee.
11.4 Risk Allocation.
The Agreement allocates the risks between Callidus and Customer. The fees for the Cloud Service and Consulting Services reflect this allocation of risk and limitations of liability.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 CALLIDUS Ownership.
Callidus, Callidus’ Affiliates or licensors own all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, Callidus Content, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to Callidus and its licensors.
12.2 Customer Ownership.
Customer retains all rights in and related to the Customer Data. Callidus may use Customer-provided trademarks solely to provide and support the Cloud Service.
12.3 Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against Callidus and its Affiliates or licensors, any rights, or any claims of any rights, in any Cloud Service, Cloud Materials, Documentation, Callidus Content or Consulting Services.
13.1 Use of Confidential Information.
(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 13. Customer will not disclose the Agreement or the pricing to any third party.
(b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 13.
(c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
(b) is generally available to the public without breach of the Agreement by the receiving party,
(c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
(d) the disclosing party agrees in writing is free of confidentiality restrictions.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that Callidus may use Customer's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Callidus' marketing efforts (including reference calls and stories, press testimonials, site visits, SAPPHIRE participation). Customer agrees that Callidus may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with Callidus.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
14.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
14.3 Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
14.4 Regulatory Matters.
Callidus Confidential Information is subject to export control laws of various countries, including the laws of the United States and Germany. Customer will not submit Callidus Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Callidus Confidential Information to countries, persons or entities if prohibited by export laws.
All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by Callidus relating to the operation or support of the Cloud Service and those under Sections 3.4 and 6.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
Without Callidus’ prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Callidus may assign the Agreement to Callidus Affiliates.
Callidus may subcontract parts of the Cloud Service or Consulting Services to third parties. Callidus is responsible for breaches of the Agreement caused by its subcontractors.
14.8 Relationship of the Parties.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
14.9 Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
14.10 Governing Law.
The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the Commonwealth of Pennsylvania, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Philadelphia, Pennsylvania. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
14.11 Entire Agreement.
The Agreement constitutes the complete and exclusive statement of the agreement between Callidus and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Callidus accepts or does not otherwise reject the purchase order.
1.1 “Active Users” is a pricing metric that measures each User that logs into the Cloud Service in a calendar month; Customer is not authorized to exceed the number of Active Users licensed hereunder in a calendar month. For clarity, once a User becomes an Active User for the thirty-day period, there is no limit to the number of times they can log in within that thirty-day period.
1.2 “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
1.3 “Agreement” means collectively, this GTC alongwith the Order Form referencing this GTC. Each Order Form in combination with this GTC constitutes a separate Agreement between Customer and Callidus. If there is conflict between the terms of this GTC and an Order Form, then the terms of such Order Form shall prevail, but only with respect to the Cloud Services licensed through that particular Order Form.
1.4 “Authorized User” means any individual to whom Customer grants access authorization to use the Cloud Service that is an employee, agent, contractor or representative of
(b) Customer's Affiliates, and/or
(c) Customer’s and Customer’s Affiliates’ Business Partners.
1.5 “Business Partner” means a legal entity that requires use of a Cloud Service in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
1.6 “Callidus Content” means Content and Learning Resources created by or for Callidus, or otherwise provided by Callidus to Customer. Unless excepted, “Callidus Content” is included in each reference to Cloud Services in this Agreement.
1.7 “Callidus Policies” means the operational guidelines and policies applied by Callidus to provide and support the Cloud Service as incorporated in an Order Form.
1.8 “Cloud Service” means any distinct, subscription-based, hosted, supported and operated on- demand solution provided by Callidus under an Order Form. The term “Cloud Service” includes On-Demand Service (as provided in an applicable Order Form), Callidus Content and Learning Management Systems.
1.9 “Cloud Materials” mean any materials provided or developed by Callidus (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. Cloud Materials do not include the Customer Data, Customer Confidential Information or the Cloud Service.
1.10 “Confidential Information" means
(a) with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and
(b) with respect to Callidus: (i) the Cloud Service, Documentation, Cloud Materials, Callidus Content and analyses under Section 3.5, and (ii) information regarding Callidus research and development, product offerings, pricing and availability.
(c) Confidential Information of either Callidus or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
1.11 “Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by Callidus’ employees or subcontractors as described in any Order Form and which are governed by the Supplement for Consulting Services or similar agreement.
1.12 “Content” means courseware content that is created or viewed within a Learning Management System (including, without limitation, artwork, images, text, audio, video, messaging, Internet links, software and other related creative elements and works of authorship).
1.13 “Customer Content” means courses proprietary to Customer or a third party that Customer creates, launches or administers in the Litmos LMS.
1.14 “Customer Data” means any content, materials, data and information that Authorized Users enter into the production system of a Cloud Service or that Customer derives from its use of and stores in the Cloud Service (e.g. Customer-specific reports). Customer Data and its derivatives will not include Callidus’ Confidential Information.
1.15 “Documentation” means Callidus' then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Cloud Service which is made available to Customer with the Cloud Service.
1.16 “Learning Management System” or “LMS” means a cloud-based learning management system through which a learner can register and participate in Content, and a learning manager can administer and view reports on the learner’s activities; the LMS may enable Customer to create and view Customer Content. “Litmos LMS” means the proprietary learning management system that Callidus provides to Customer under an Order. Unless excepted, “Litmos LMS” is included in each reference to Cloud Services in this Agreement.
1.17 “Learning Resources” means (other-than subscribed course) items that Customer may download from the course library, or that Callidus may otherwise provide, such as ancillary learning material like workbooks, graphics, or course-completion promotional collateral that Customer may use pursuant to this Agreement to supplement subscribed courses in its internal curriculum to its learners. Unless excepted, “Learning Resources” is included in each reference to Callidus Content in this Agreement.
1.18 “Named Users” means a specific User that has login access to Cloud Services during the annual term.
1.19 “Order Form” means the ordering document for a Cloud Service that references the GTC. The term “Order Form” includes but is not limited to Schedule, Sales Order, Order, Renewal Order or similar so-titled documents, along with all of its exhibits and attachments, which is issued pursuant to or refer to this GTC and is executed by Customer and Callidus.
1.20 “Subscription Term” means the term of a Cloud Service subscription identified in the applicable Order Form, including all renewals.
1.21 “Supplement” means as applicable, the supplemental terms and conditions that apply to the Cloud Service and that are incorporated in an Order Form.
1.22 “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a Cloud Service as set forth in an Order Form.
1.23 “Users” shall mean any person, third party, or entity that has login access to Cloud Services.