Training Services Agreement

Last Updated:  January 5, 2018

 

IMPORTANT! THIS TRAINING SERVICES AGREEMENT (‘AGREEMENT”) IS BY AND BETWEEN SALESBOOST, LLC (“SALESBOOST”) AND YOU AS CLIENT (“CLIENT” OR “YOU”) IN CONNECTION WITH THE TRAINING SERVICES CONTEMPLATED UNDER THE APPLICABLE ORDER FORM (THE “ORDER”) TO WHICH THIS AGREEMENT IS INCORPORATED BY REFERENCE. BY EXECUTING THE ORDER, CLICKING “I AGREE”, ACCEPTING ANY OF THE TRAINING SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF CLIENT, AND ARE DOING SO, (B) YOU AND CLIENT CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND CLIENT SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SALESBOOST WILL NOT PROVIDE ANY OF THE TRAINING SERVICES.

 

WHEREAS, Salesboost provides a sales training platform that provides a performance-based and robust training solution for the hotel and other industries (as more particularly described in the Order and as modified from time to time, the “Training Services”).

 

WHEREAS, Client wishes to procure the Training Services from Salesboost and Salesboost wishes to provide these Training Services to Client, each on the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, 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. Definitions.

 

“Access Credentials” means any user name, identification number, password, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Training Services and the other Training Materials.

 

“Action” has the meaning set forth in Section 11.1.

 

“Authorized Hotels” means the hotels of Client at which the Training Services may be provided as identified on Exhibit A.

 

“Authorized User” means each of the individuals authorized by Client to access and use the Training Services and the Training Materials pursuant to Section 3.1 and the other terms and conditions of this Agreement.

 

“Client Data” means all information and data, that is collected, downloaded or otherwise received, directly or indirectly from Client or an Authorized User in connection with the Training Services or the Training Platform, including the visual and voice recordings of the Authorized Users.

 

“Client Indemnitee” has the meaning set forth in Section 11.1.

 

“Client Systems” means the Client’s information technology infrastructure, including servers, computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.

 

“Confidential Information” has the meaning set forth in Section 8.1.

 

“Disclosing Party” has the meaning set forth in Section 8.1.

 

“Documentation” means any written manuals, instructions or other documents or materials that Salesboost provides or makes available to Client that describe the functionality, components, features or requirements of the Training Services or the Training Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

 

“Fees” has the meaning set forth in Section 6.1.

 

“Force Majeure Event” has the meaning set forth in Section 13.1.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any Client Data thereby, or (b) prevent Client or any Authorized User from accessing or using the Training Services or the Training Systems as intended by this Agreement.

 

“Improvement Suggestions” has the meaning set forth in Section 7.4.

 

“Indemnitee” has the meaning set forth in Section 11.3.

 

“Indemnitor” has the meaning set forth in Section 11.3.

 

“Initial Term” has the meaning set forth in Section 11.1.

 

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

 

“IP Indemnification” has the meaning given to that term in Section 11.1.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

 

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Permitted Use” means any use of the Training Services and the Training Materials by an Authorized User for the benefit of Client solely in connection with the training of Client’s employees.

 

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

 

“Receiving Party” has the meaning set forth in Section 8.1.

 

“Reimbursable Expenses” has the meaning set forth in Section 6.3.

 

“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, independent contractors and legal advisors.

 

Salesboost Indemnitee” has the meaning set forth in Section 11.2.

 

“Salesboost Personnel” means all individuals involved in the provision of the Training Services as employees, agents or independent contractors of Salesboost or any of its subcontractors.

 

“Salesboost Support Services” means those support services provided by Salesboost to Client as set forth on Exhibit A.

 

“Term” has the meaning set forth in the Order.

 

“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Training Services or the Training Materials, including the Training Platform, that are not proprietary to Salesboost.

 

“Training Materials” means the Training Platform, Documentation and Training Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Salesboost in connection with the Training Services.

 

“Training Platform” means the software application and any third-party or other software that enables Client and its employees to access and use the Training Services, including all new versions, updates, revisions, improvements and modifications of the foregoing, that Salesboost provides for use as part of the Training Services, whether accessible remotely or as loaded locally onto the computers or servers of the Client.

 

“Training Systems” means the information technology infrastructure used by or on behalf of Salesboost in providing the Training Platform and the Training Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Salesboost or through the use of third-party services.

 

2. Training and Other Services.

 

2.1           Services. Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Salesboost shall use commercially reasonable efforts to provide to Client and its Authorized Users the Training Services through the Training Platform during the Term. This includes the Training Materials. The Parties may modify the Training Services to be provided at any time as agreed in writing.

 

2.2           Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

 

(a)            Salesboost has and will retain sole control over the operation, provision, maintenance and management of the Training Services, the Training Platform and the other Training Materials, including: (i) the Training Systems and (ii) the selection, deployment, modification and replacement of the Training Platform.

 

(b)            Client has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Training Services and the Training Materials by any Person by or through the Client Systems or any other means controlled by Client or any Authorized User.

 

2.3           Operations Management. Each party shall, throughout the Term, maintain within its organization an operations manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Training Services. Each operations manager shall be responsible for providing all consents and approvals on behalf of such party under this Agreement. Each party shall ensure its operations manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.

2.4           Changes. Salesboost reserves the right, in its sole discretion, to make any changes to the Training Services and the other Training Materials, including the Training Platform that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Training Services to the Client or its employees or (ii) the cost efficiency or provision of the Training Services or the Training Platform; or (b) to comply with applicable Law.

2.5           Other Services. Salesboost may provide other services to Client from time to time as mutually agreed by the parties (e.g., white-labelling the Training Services for use by Client) (as more particularly described on Exhibit A, the “Other Services”). The terms and conditions for such Other Services, including any applicable fees, shall be mutually agreed by the parties.

2.6           Subcontractors. Salesboost may from time to time in its discretion engage third parties to provide the Training Services and the Other Services.

3. Authorization and Client Restrictions.

3.1           Authorization. Subject to and conditioned on Client’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Salesboost hereby authorizes Client and its Authorized Users to access and use, during the Term, the Training Services and such Training Materials as Salesboost may supply or make available to Client solely at the Authorized Hotels for the Permitted Use by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 14.6, non-transferable.

3.2           Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Training Services or the other Training Materials including the Training Platform, or the Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Training Services, the Training Materials and the Third-Party Materials are and will remain with Salesboost and the respective rights holders in the Third-Party Materials.

3.3           Authorization Limitations and Restrictions. Client shall not, and shall not permit any other Person to, access or use the Training Services or the other Training Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:

(a)            copy, modify or create derivative works or improvements of the Training Services or the other Training Materials;

 

(b)            rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any of the Training Services or the Training Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

 

(c)            reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Training Materials, in whole or in part;

 

(d)            bypass or breach any security device or protection used by any of the Training Services or the Training Materials;

 

(e)            remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices on or with any of the Training Services or the Training Materials, including any copy thereof;

 

(f)            access or use any of the Training Services or the Training Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;

 

(g)            access or use any of the Training Services or the Training Materials for purposes of competitive analysis of the Training Services or Training Materials, the development, provision or use of a competing software service or product or any other purpose that is to Salesboost’s detriment or commercial disadvantage; or

 

(h)           otherwise access or use any of the Training Services or the Training Materials beyond the scope of the authorization granted under Section 3.1.

 

4. Client Obligations.

 

4.1           Client Systems and Cooperation. Client shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with any of Salesboost’s directions all Client Systems on or through which the Training Services are accessed or used; (b) download updates promptly to ensure that the Training Platform is fully up to date; (c) provide Salesboost Personnel with such access to Client’s premises and Client Systems as and when it is necessary or useful for Salesboost to provide the Training Services, including providing the Salesboost Support Services; and (d) provide all cooperation and assistance as Salesboost may reasonably request to enable Salesboost to provide the Training Services and exercise its rights and perform its obligations under and in connection with this Agreement and the Training Services.

4.2           Effect of Client Failure or Delay. Salesboost is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

5. Security.

 

5.1           Security Obligations and Client Systems. Salesboost will employ commercially reasonable security measures to protect the Client Data in accordance with commercially reasonable standards.

5.2           Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client or any Authorized User in connection with the Training Services; (c) the Client Systems; (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Training Services and Training Materials, including the Training Platform, directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

5.3           Access and Security. Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials in connection with the Training Services and protect against any unauthorized access to or use of the Training Services; and (b) control the content and use of Client Data.

6. Fees and Payment Terms.

 

6.1           Fees. Client shall pay Salesboost the fees set forth in in the Order (“Fees”) in accordance with the Order and this Section 6.

6.2           Fee Increases. Salesboost may increase Fees for any subsequent Term by providing written notice to Client at least sixty (60) calendar days prior to the commencement of the applicable Term, and Schedule A will be deemed amended accordingly.

6.3           Reimbursable Expenses. Client shall reimburse Salesboost for out-of-pocket expenses and costs incurred by Salesboost in connection with providing additional services with respect to the Training Services as mutually agreed by the parties (“Reimbursable Expenses”).

6.4           Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use and excise taxes, and 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 by Client hereunder, other than any taxes imposed on Salesboost’s income.

6.5           Payment. Client (or an Authorized Hotel) shall pay all Fees, Reimbursable Expenses and taxes in accordance with this Section 6.5 and the Order. In order to access and use the Training Platform, unless an alternative payment method is agreed in writing by the parties, Client (or the applicable Authorized Hotel) shall provide, on or prior to the execution of this Agreement, a valid credit card for the payment of all applicable Fees, Reimbursable Expenses and taxes. Client (or the applicable Authorized Hotel) agrees that all information that it provides to Salesboost will be true, accurate, current, and complete. Client will ensure that this information is kept accurate and up-to-date at all times. Notwithstanding the foregoing, Client shall be responsible for any Authorized Hotel’s payment breach.

6.6           Late Payment. If Client or the applicable Authorized Hotel fails to make any payment when due then, in addition to all other remedies that may be available:

 

(a)            Salesboost may charge interest on the past due amount at the rate of the lower of 1.5% per month calculated daily and compounded monthly and the highest rate permitted under applicable Law;

 

(b)            Client shall reimburse Salesboost for all costs incurred by Salesboost in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and

 

(c)            if such failure continues for thirty (30) days following written notice thereof, Salesboost may suspend access and use of the Training Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client, the applicable Authorized Hotel or any other Person by reason of such suspension.

 

6.7           No Deductions or Setoffs. All amounts payable to Salesboost under this Agreement shall be paid by Client to Salesboost in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

7. Intellectual Property Rights and Data.

 

7.1           Training Services and Training Materials. All right, title and interest in and to the Training Services and the Training Materials, including all Intellectual Property Rights therein, are and will remain with Salesboost and the respective rights holders in the Third-Party Materials. Client has no right, license or authorization with respect to any of the Training Services or Training Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3. All other rights in and to the Training Services and the Training Materials (including Third-Party Materials) are expressly reserved by Salesboost and the respective third-party licensors.

7.2           Client Data. As between Client and Salesboost, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.3.

 

7.3           Consent to Use of Client Data. Client hereby irrevocably grants the perpetual and irrevocable right and permission in or relating to the Client Data: (a) to Salesboost, its U.S. and international subcontractors and third-party service providers and the Salesboost Personnel as is necessary or useful to provide the Training Services; (b) to Salesboost and its international third-party service providers to transfer to each other the Client Data as is necessary or useful to provide the Training Services; (c) to Salesboost as is necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder; and (d) to Salesboost to use such Client Data for any other purpose without restriction, including the disclosure of any such Client Data without restriction so long as the name of the Client and the specific names of the Authorized Users are not disclosed and Salesboost does not disclose any Confidential Information of Client. All personal information included in the Client Data shall be treated in accordance with Salesboost’s privacy policy (as modified from time time). These rights are assignable without restriction in connection with any assignment of this Agreement by Salesboost.

7.4           Improvement Suggestions. Salesboost shall own all right, title and interest in any suggestions for improvements or other changes to the Training Services or the Training Materials made by Client or any of Client’s Representatives or Authorized Users (“Improvement Suggestions”) and Salesboost shall be free to use any such Improvement Suggestions without any payment or restriction.

8. Confidentiality.

 

8.1           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 8.2, “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, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, the Training Services and all of the Training Materials are the Confidential Information of Salesboost.

8.2           Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (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 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.

8.3           Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for three (3) years thereafter:

 

(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 and subject to its compliance with Section 8.4, 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 8.3; 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 8.3;

 

(c)            safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most 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’ non-compliance with, the terms of this Section 8.

 

8.4           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 (if not prohibited by applicable Law) in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; 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 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, (a) the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose, (b) on 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 and (c) all such Confidential Information shall continue to be treated as confidential under the terms of this Section 8.

9. Term and

9.1           Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until twelve (12) months from such date (the “Initial Term”). This Agreement will automatically renew for additional successive twelve (12) month terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (together with the Initial Term, the “Term”).

9.2           Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

 

(a)            Salesboost may terminate this Agreement, effective on written notice to Client, if Client fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Salesboost’s delivery of written notice thereof;

 

(b)            a party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;

 

(c)            a party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

 

(d)            Client may terminate this Agreement with respect to an Authorized Hotel if Client no longer owns and manages such Authorized Hotel upon no less than sixty (60) days’ prior written notice to Salesboost; provided that Salesboost shall continue to provide the Training Services to such Authorized Hotel for up to sixty (60) days (or such other period as agreed in writing by the parties) after the effective date of termination if requested by Client and Client continues to pay the applicable Fees and taxes. In the event of any such termination, Customer shall be entitled to a prorata credit of the subscription Fees that had been paid with respect to such Authorized Hotel relative to the time remaining in the current term. Such credit may only be applied to future subscription Fees.

 

9.3           Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as provided in Section 9 or otherwise expressly provided in this Agreement:

 

(a)            all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;

 

(b)            each party shall immediately cease all use of the other party’s Confidential Information and return to such other party, or at such other party ‘s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on such other party ‘s Confidential Information;

 

(c)            Client shall immediately cease all use of any of the Training Services and the Training Materials and promptly return to Salesboost, or at Salesboost’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Training Materials or Salesboost’s Confidential Information.

 

(d)            notwithstanding anything to the contrary in this Agreement, with respect to Confidential Information then in its possession or control, a party may retain one copy of the other party’s Confidential Information for administrative and legal purposes so long as such Confidential Information is treated as confidential under the terms of this Agreement; and

(e)            Salesboost may disable all Client and Authorized User access and use of the Training Services and the Training Materials.

 

9.4           Surviving Terms. 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 3.3, Section 7, Section 8, Section 9.3, this Section 9.4, Section 10, Section 11, Section 12 and Section 14.

10. Representations and Warranties.

 

10.1        Mutual Representations and Warranties. Each party represents and warrants to the other party that:

 

(a)            it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

 

(b)            it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;

 

(c)            the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

 

(d)            when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

 

10.2        Additional Client Representations, Warranties and Covenants. Client represents, warrants and covenants to Salesboost that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Salesboost in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any customer or other third party or violate any applicable Law.

10.3        DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.2, ALL TRAINING SERVICES AND TRAINING MATERIALS ARE PROVIDED “AS IS” AND SALESBOOST HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SALESBOOST 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, SALESBOOST MAKES NO WARRANTY OF ANY KIND THAT THE TRAINING SERVICES OR THE TRAINING MATERIALS WILL MEET CLIENT’S, CLIENT’S EMPLOYEES OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

11. Indemnification.

11.1        Salesboost Indemnification. Salesboost shall indemnify, defend and hold harmless Client and Client’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Client Indemnitee”) from and against any and all Losses incurred by such Client Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of a Client Indemnitee) to the extent that such Losses arise of or relate from (i) any allegation in such Action that Client’s use or provision of the Training Services (excluding Client Data and Third Party Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right (the “IP Indemnification”); (ii) allegation of facts that, if true, would constitute Salesboost’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (iii) the negligence or willful misconduct by Salesboost, or any third party on behalf of Salesboost, in connection with this Agreement. The foregoing IP Indemnification obligation does not apply to any Action or Losses to the extent arising out of or relating to any:

(a)            access to or use of the Training Services or the Training Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Salesboost;

(b)            modification of the Training Services or the Training Materials other than: (i) by or on behalf of Salesboost; or (ii) with Salesboost’s written approval in accordance with Salesboost’s written specification;

(c)            failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of Salesboost; or

(d)            the negligence or willful misconduct by Client or its Authorized Users in connection with this Agreement.

 

11.2        Client Indemnification. Client shall indemnify, defend and hold harmless Salesboost and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Salesboost Indemnitee”) from and against any and all Losses incurred by such Salesboost Indemnitee in connection with any Action by a third party, including any Authorized User (other than an Affiliate of an Salesboost Indemnitee) that arise out of or relates to any:

 

(a)            Client Data;

 

(b)            any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client or any Authorized User, including Salesboost’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User except to the extent caused by any contribution by Salesboost;

 

(c)            allegation of facts that, if true, would constitute Client’s or any Authorized User’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or

 

(d)            the negligence or willful misconduct by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement.

 

11.3        Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

11.4        Mitigation. If any of the Training Services or Training Materials are, or in Salesboost’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Training Services or the Training Materials is enjoined or threatened to be enjoined, Salesboost may, at its option and sole cost and expense:

 

(a)            obtain the right for Client to continue to use the Training Services and Training Materials in all material ways as contemplated by this Agreement;

 

(b)            modify or replace the Training Services and the Training Materials, in whole or in part, to seek to make the Training Services and the Training Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Training Services and Training Materials, as applicable, under this Agreement; or

 

(c)            if either of the other two (2) options, in the sole opinion of Salesboost, is not commercially reasonable, by written notice to Client, terminate this Agreement with respect to all or part of the Training Services and Training Materials, and require Client to immediately cease any use of the Training Services and the Training Materials and subject to Client’s compliance with its post-termination obligations set forth in Section 9.4, Client will be entitled to a pro-rata (relative to the remaining Term) refund of any Fees paid in connection with the current Term.

 

THIS SECTION 11 SETS FORTH CLIENT’S SOLE REMEDIES AND SALESBOOST’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE TRAINING SERVICES AND THE TRAINING MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

 

12. Limitations of Liability.

 

12.1        EXCLUSION OF DAMAGES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF SECTION 3 OR SECTION 8, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS 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 AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2        CAP ON LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF SALESBOOST AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE TRAINING SERVICES OR THE TRAINING MATERIALS OR, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT IN THE TWELVE (12) MONTH PRECEDING THE APPLICABLE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13. Force Majeure.

13.1        No Breach or Default. In no event will either party be liable or responsible to the other party, 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, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’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.

13.2        Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

14. Miscellaneous.

 

14.1        Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

14.2        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.

14.3        Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Salesboost may, without Client’s consent, include Client’s name in its lists of Salesboost’s current or former customers and use any testimonials or other endorsements provided by Client (or any Authorized Hotel and their Affiliates and employees) without restriction in promotional and marketing materials.

14.4        Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be provided in accordance with the Order.

 

 

 

14.5        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.

14.6        Assignment. Client shall not assign (by operation of law or otherwise) 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 Salesboost’s prior written consent, which consent Salesboost shall not unreasonably withhold. No delegation or other transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

14.7        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.

14.8        Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing 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.

14.9        Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.10     Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to any conflict of law principles. Any legal suit, action or proceeding arising out of or related to this Agreement, the Training Services or the Training Materials shall be instituted exclusively in the federal or state courts in Dallas County, Texas and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

14.11     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.

14.12     Force Majeure. The obligations of a party (other than payment) will be suspended by the occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance impossible including, acts of God, war, fire, flood, accident, strike, casualty, power failures, governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials. The party invoking force majeure shall (a) send written notice thereof to the other within a reasonable time after the invoking party knew or should have known that performance would be delayed or prevented due to the force majeure and (b) take reasonable steps to limit the duration and effect of any such force majeure.

14.13     Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Client, Section 3.3 or Section 5.3, would 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 other 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.

14.14     Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled, in addition to any other relief that may be granted, to be awarded costs, including its reasonable attorneys’ fees and other costs related to any such action, suit or proceeding, including court costs.

14.15     Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.