IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICE, THESE TERMS WILL ALSO GOVERN YOUR FREE TRIAL.
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY, INSTITUTION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AS ITS AUTHORIZED REPRESENTATIVE, AND THE TERMS "YOU" OR "YOUR" WILL ALSO REFER TO SUCH ENTITY. IF THE LEGAL ENTITY THAT YOU REPRESENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS, REGISTER, AND USE OR ACCESS THE SERVICE.
NOTE TO USERS LOCATED IN THE EUROPEAN ECONOMIC AREA (EEA) REGARDING DATA TRANSFERS: USER INFORMATION IS TRANSFERRED FROM THE EEA TO THE UNITED STATES AND OTHER COUNTRIES FOR THE PURPOSES OF MARKETING, PROVIDING SERVICES, FACILITATING TRANSACTIONS, SECURITY, CUSTOMER SUPPORT, CUSTOMER COMMUNICATIONS, CREATING, DEVELOPING, OPERATING, DELIVERING, AND IMPROVING PRODUCTS, SERVICES, CONTENT AND ADVERTISING, VERIFICATION OF IDENTITY AND DETERMINATION OF APPROPRIATE SERVICES, THE PROVISION OF DATA SERVICES TO THIRD PARTY AGENTS INCLUDING SERVICES THAT PROVIDE COMPUTING AND VARIOUS INFORMATION PROCESSING OR DEVELOPMENT SERVICES, AUDITING, DATA ANALYSIS AND DATA STORAGE. BY USING THE SERVICE AND AGREEING TO THESE TERMS IN THEIR ENTIRETY, YOU HEREBY: (I) GIVE YOUR ONGOING CONSENT THAT YOUR USER INFORMATION (AS DEFINED HEREIN) MAY BE TRANSFERRED TO COUNTRIES OUTSIDE OF THE EEA, INCLUDING TO THE UNITED STATES; (II) ACKNOWLEDGE AND UNDERSTAND THAT THE LAWS AND REGIMES PROTECTING PERSONAL DATA MAY BE LESS RIGOROUS THAN THAT IN THE EEA; AND (III) AFFIRM, REPRESENT AND WARRANT THAT YOU HAVE BEEN FULLY INFORMED ABOUT THE TRANSFER OF YOUR USER INFORMATION AND THAT YOUR CONSENT TO SUCH TRANSFER IS MADE SPECIFICALLY AND FREELY. YOU MAY WITHDRAW YOUR CONSENT FOR FUTURE TRANSFERS AT ANY TIME BY CANCELLING YOUR ACCOUNT AS SET FORTH HEREIN AND CEASING ALL FUTURE USE OF THE SERVICE.
These Terms are effective as of the date of you accepting these Terms.
“Affiliate(s)” means any entity, including without limitation, any corporation, company, partnership, limited liability company, or group that directly or indirectly, through one of more intermediaries, controls, is controlled by, or is under common control with the subject entity.
“Authorized Users” means collectively, Learners and Administrators of Customer. The number of Authorized Users shall not exceed the number Customer has subscribed for from time to time.
“Customer” means the company, institutional or other legal entity users or purchasers of the Service.
“Customer Data” means any information or data stored or processed through use of the Service that concerns, but is not limited to, Customer’s Authorized Users, training materials, learning record stores, scoring methods, results and Statements.
"Intellectual Property Rights" means rights in unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights in the broadest meaning of the term, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Learner” means an individual employee, contractor, agent of Customer (or Customer’s customer) who is the subject of learning or training records for use in connection with the Service.
“Purchased Services” means Services that You purchase under a Subscription Order, as distinguished from those provided pursuant to a free trial.
"Service" means the products and services that are ordered by You under a Subscription Order or provided to You under a free trial.
“Statements” shall be defined in Section 2.1 below.
“Subscription” means the limited grant by Watershed to use the Service and any Documentation in accordance with these Terms.
"Subscription Order" means an ordering document or online order evidencing the agreed-upon initial subscription and any subsequent subscription, specifying, among other things, the specific type of Subscription and Services contracted for, the applicable fees, the billing period, and other terms as agreed to between the parties. Each such Subscription Order is incorporated into and becomes a part of these Terms (in the event of any conflict between the terms of these Terms and the terms of any such Subscription Order, the terms of these Terms shall prevail).
“Watershed”, “we”, “us”, “our” and terms of similar meaning means Watershed Systems Inc.
"Watershed Technology" means all of Watershed's proprietary technology (including the Service and all proprietary software, hardware, products, processes, algorithms, user interfaces, reports, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Watershed in connection with these Terms.
“You” or “Your” means Customer for which you are accepting these Terms if your use of the Service is in connection with such Customer’s use or purchase of the Service.
2.1. For the duration specified in the Subscription Order Watershed grants Customer a limited, non-exclusive, non-transferable license to use the Service to receive, store and share experiential data in the form of statement objects (“Statements”) on behalf of a limited number of unique Learners, subject to these Terms. All rights not expressly granted herein are reserved by Watershed.
2.2. With respect to the Service, Customer shall not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make it available to any third party in any way (except that Customer may allow Customer’s contractors access to the Service as required in order to perform their obligations towards Customer); (ii) transmit or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or upload, post, or transmit any unlawful, harassing, libelous, or abusive material on the Service; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer, decompile, or disassemble the Service or any Watershed Technology.
If you register for a free trial, we will make our Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Service, or (b) the start date of any Purchased Service subscriptions ordered by you for such Service, or (c) termination by us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
4.1. Customer shall defend, indemnify, and hold harmless Watershed and its Affiliates, and their officers, shareholders, employees, agents, successors and assigns (each a “Watershed Indemnified Party”) from and against any and all damages, losses, costs and expenses (including any reasonable attorney's fees and expenses) in connection with any claim, suit, action, or proceeding (“Claims”) brought against a Watershed Indemnified Party to the extent arising out of: (a) Customer’s use of the Service, (b) any negligent act or willful misconduct by Authorized Users and any agents, employees, or subcontractors of Customer, or (c) an allegation that the Customer Data or any other content, data or information supplied by Customer, or the use thereof infringes the Intellectual Property Rights of a third party.
4.2. Watershed shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with any Claim brought against Customer by a third party for: (a) any grossly negligent act or willful misconduct by agents, employees, or subcontractors of Watershed, or (b) alleging that the use of the Service by Authorized Users as contemplated hereunder infringes any copyright, trademark or trade secret rights of a third party. In the event that the Service or any part thereof are likely to or do become the subject of an infringement related Claim, and Watershed cannot, at its sole option and expense, procure for Customer the right to continue using the Service, or any part thereof, or modify the Service, or any part thereof, to make them non infringing, then Watershed has the right to terminate these Terms.
6.1 Watershed alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights in and to the Service and the Watershed Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. Watershed’s name, Watershed’s logo, and the product names associated with the Service are trademarks of Watershed or third parties, and no right or license is granted to use them.
6.2 Watershed and Customer shall preserve as confidential and not disclose to any party (other than employees with a ‘need to know’ or independent contractors bound by a written agreement of confidentiality no less restrictive than this Section), or use for any reason other than performance under these Terms, all information and trade secrets related to the business of the other party that is indicated as confidential or which a party should reasonably know to be confidential given the nature of the information and/or the circumstances of its disclosure (“Confidential Information”). Customer acknowledges that the pricing, Service and Documentation are Confidential Information of Watershed. The confidentiality obligations of this Section shall not apply to: (i) information that is publicly known prior to the disclosure or becomes publicly known through no wrongful act of the receiving party; (ii) information that was in lawful possession of the receiving party prior to the disclosure without any agreement of confidentiality restricting its use or disclosure, and was not received as a result of any breach of confidentiality with respect to the other party (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) becomes known by the receiving party from a third party and, to the receiving party’s knowledge, is not subject to an obligation of confidentiality to the disclosing party. Watershed and Customer acknowledge that monetary remedies may be inadequate to protect their rights with respect to a breach of this Section and agree that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights, and each party hereby waives its right to assert that monetary remedies are adequate.
6.3 Watershed and Customer agree that both companies have the right to express publicly their relationship, including the names of the entities and the Service involved. This includes the right to republish logos, company names, and software names. Either company may request that a specific reference to the other be removed, and it is expected that publications by either the Watershed or Customer will be generally positive in tone.
7.1 Watershed and third parties on its behalf shall implement security tools and procedures to secure the Customer Data. These tools include protection such as encryption for communication and user authentication to prevent unauthorized user access or other malicious activities. While such tools and procedures reduce the risk of security breaches, Watershed cannot guarantee that the Service will be immune from any unlawful interceptions or unauthorized access.
8.1. In consideration for the Service to be performed by Watershed, Customer agrees to pay to Watershed the amount as indicated on the Subscription Order. Except as otherwise specified herein or in a Subscription Order,(i) fees are based on Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
8.2 You will provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for all Purchased Services listed in the Subscription Order for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Subscription Order. If the Subscription Order specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the relevant Subscription Order. Unless otherwise stated in the Subscription Order, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
8.3 If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future subscription renewals and Subscription Orders on payment terms shorter than those specified herein.
8.4 If any amount owing by you under this or any other agreement for our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full. Other than for Customers paying by credit card or direct debit whose payment has been declined, we will give you at least 10 days’ prior notice that your account is overdue, before suspending services to you.
8.5 We will not exercise our rights under Section 8.3 or 8.4 above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
8.6 Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). you are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
9.1 These Terms commence on the date you first accept them and continues until all subscriptions hereunder have expired or have been terminated.
9.2 The term of each Subscription shall be as specified in the applicable Subscription Order. Except as otherwise specified in an Subscription Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription term. Except as expressly provided in the applicable Subscription Order, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal.
9.3 These Terms or any Subscription Order can be terminated by either party upon written notice if the other party breaches any material term or condition of these Terms or Subscription Order and such breach remains uncorrected for thirty (30) calendar days following written notice from the non-breaching party specifying the breach. Termination of these Terms or a Subscription Order shall be without prejudice to the survival of provisions in these Terms which by their nature survive termination.
9.4 If these Terms are terminated by you in accordance with Section 9.3, we will refund you any prepaid fees covering the remainder of the term of all Subscription Orders after the effective date of termination. If these Terms are terminated by us in accordance with Section 9.3, you will pay any unpaid fees covering the remainder of the term of all Subscription Orders. In no event will termination relieve you of Your obligation to pay any fees payable to us for the period prior to the effective date of termination.
9.5 Upon request of the other party, each party will return to the other Confidential Information and other proprietary materials and data which have been delivered by the other party, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party or will provide a letter signed by an authorized representative of the receiving party that such Confidential Information and data have been destroyed. Customer shall have forty-five (45) days from the termination of these Terms to request a copy of the Customer Data from Watershed, and if requested, Watershed shall use commercially reasonable efforts to provide a copy of that data within thirty (30) days. After such thirty (30) day period, Watershed shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
Watershed will, as part of the Service provide Customer with Watershed’s standard customer support services for the length of the Subscription in accordance with Watershed’s support policies found here.
WATERSHED REPRESENTS AND WARRANTS THAT: (A) IT WILL PERFORM ALL SERVICES EXERCISING DUE CARE AND IN A GOOD, WORKMANLIKE AND PROFESSIONAL MANNER, USING EMPLOYEES OR SUBCONTRACTORS HAVING THE PROPER EXPERTISE, SKILLS, TRAINING AND PROFESSIONAL EDUCATION TO RENDER THE SERVICES TO BE PROVIDED TO CUSTOMER AND IN ACCORDANCE WITH THE GENERALLY ACCEPTED STANDARDS OF THE INDUSTRY TO WHICH THE SERVICES PERTAIN, (B) IT WILL EMPLOY COMMERCIALLY REASONABLE MEASURES TO SCREEN THE SERVICES FOR VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS AND OTHER SOFTWARE ROUTINES OR CODE DESIGNED TO PERMIT UNAUTHORIZED ACCESS TO, DISRUPT, DISABLE, ERASE, OR OTHERWISE HARM CUSTOMER’S SOFTWARE, HARDWARE OR DATA, AND (C) IT HAS THE FULL AND UNRESTRICTED RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT AND TO PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT. EXCEPT AS OTHER STATED IN THIS SECTION, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. WATERSHED (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (B) THE SERVICES AND/OR THEIR QUALITY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.
IN NO EVENT WILL WATERSHED BE LIABLE FOR LOST REVENUE, PROFITS, BUSINESS OR DATA, OR FOR ANY COSTS OF COVER, INDIRECT, INCIDENTAL, CONSEQUENTIAL PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF WATERSHED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WATERSHED’S TOTAL LIABILITY UNDER OR ARISING OUT OF THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CLAIM FIRST AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THESE TERMS.
Customer shall provide Watershed with all necessary cooperation in relation to any Subscription Order and all necessary access to such information as may be required by Watershed to provide the Service. Customer shall comply with all applicable laws and regulations with respect to its activities under these Terms and any Subscription Order and shall carry out their responsibilities set out in the Subscription Orders in a timely and efficient manner. Customer shall ensure that the Authorized Users use the Service in accordance with the terms and conditions of these Terms and shall ensure that its network and systems comply with the relevant specifications provided by Watershed from time to time. Customer shall: (i) notify Watershed immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) suspend all user accounts for individuals who are no longer authorized to access those accounts, and (iii) comply with any instructions concerning access to and/or use of the Service that Watershed may give from time to time.
These Terms may not be assigned or otherwise transferred by Customer via sale, merger, change in control, by operation or law or otherwise, without Licensor’s prior written consent and any such purported assignment or transfer shall be void.
These Terms shall be exclusively governed by the laws of the State of Tennessee, without regard to the choice or conflicts of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with these Terms or the Service. Except for the right of either party to apply to a court of competent jurisdiction for an injunction or other equitable relief or for the collection of an account stated, any controversy, claim or dispute related to these Terms will be settled by binding arbitration before a single arbitrator, who is an attorney with experience in the software industry. The arbitration will be conducted under the then current Commercial Arbitration Rules of the American Arbitration Association. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in any court having jurisdiction thereof. The arbitration will be held in Williamson County, Tennessee. The arbitrator will enforce these Terms and will have no authority to award punitive damages, non-compensatory damages or any damages other than direct damages, or to award direct damages in excess of the limitations and exclusions set forth in these Terms. In the event that Customer initiates an arbitration for alleged breach of these Terms, and Customer does not prevail in the arbitration, Customer agrees that Watershed shall be paid its reasonable attorneys' fees and costs. The existence of the arbitration, the arbitration proceedings and the outcome of such arbitration will be treated as Confidential Information under these Terms and will not be disclosed by either party.
The waiver by either party of a breach of any provision of these Terms or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. If any one or more of the provisions in these Terms are determined invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of these Terms, and these Terms will be construed as if such invalid, illegal or unenforceable provisions had never been contained in these Terms; provided, however, if a court or arbitration panel finds any provision of these Terms may be rewritten to be valid, legal and enforceable, the parties agree that such court or arbitration panel shall rewrite the provision.
Neither party will be responsible to the other for any delay, failure in performance, loss or damage, unless through the exercise of reasonable diligence, the non-performing party was able to prevent interference with and/or interruption of its performance of these Terms, due to fire, explosion, power blackout, earthquake, volcanic action, cable cuts by third parties, flood, severe weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond their reasonable control, except that Customer must pay for any Service used. Any such delay or failure shall suspend these Terms until the force majeure event ceases, provided that such party gives the other party prompt written notice of the failure to perform, the reason for the failure to perform, its expected duration, and its anticipated effect on the ability to perform the obligations, and uses its reasonable efforts to limit the resulting delay in its performance. However, if such condition persists for a period of greater than thirty (30) days, the other party may, at its option, terminate these Terms without penalty. This section does not excuse either party’s obligation to take reasonable steps to follow industry disaster recovery procedures.
No text or information set forth on any other purchase order, preprinted form or document (other than a Subscription Order, if applicable and where expressly stated that it amends or deviates from the terms of these Terms) shall add to or vary the terms and conditions of these Terms. These Terms, together with any applicable Subscription Order, comprises the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All provisions of these Terms which should by their nature survive the termination of these Terms shall so survive, including without limitation those terms regarding payment of fees, ownership and confidentiality, disclaimer of warranties and limitations of liability. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of these Terms or use of the Service. The Service may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use the Service in a U.S. embargoed country or in violation of any U.S. export law or regulation. Except as otherwise specified herein, all notices will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Service system administrator designated by you.