NINJIO, LLC
TERMS AND CONDITIONS
UPDATED January 24, 2024
These NINJIO Platform Terms (these “Terms”) together with the Order Form incorporating these Terms by reference and the other documents referred to therein, form the entire Agreement (the “Agreement”), by and between NINJIO, LLC (“NINJIO”), a Delaware limited liability company having its principal place of business at 880 Hampshire Road, Suite B, Westlake Village, CA 91361, and the Company (as set forth in the Order Form), effective as of the Effective Date set forth in the Order Form. NINJIO and Company may be collectively referred to herein as the “Parties” and each individually as a “Party”.
1. DEFINITIONS. In addition to any terms defined throughout these Terms or in an Order Form, when used in these Terms, the following capitalized terms shall have the meanings indicated below:
1.1 “Account” means Company’s account through which the Company can access and use the Platform, including designating Authorized Users and Administrators.
1.2 “Administrator” means the individual Company Authorized Users designated by the Company to access the Account as an administrator of such Account, each of which will be assigned a unique user login and password.
1.3 “Affiliate” means an entity controlling, controlled by or under common control with a Party. As used in this definition, the terms “control,” “controlling” and “controlled by” shall mean the possession, directly or indirectly, of the power either to (a) vote 50% or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such person or (b) direct or cause the direction of the actions, management or policies of such person, whether through the ownership of voting securities or interests, by contract or otherwise.
1.4 “Authorized User” means Company’s employees and/or contractors who have been provided access to and use of the Platform or any portion thereof by Company, regardless of whether or not such individuals actually access and/or use the Platform or any portion thereof.
1.5 “Authorized User Data” means data, including personal data (as defined in the DPA pursuant to Section 10 (Data and Privacy Concerns) hereof), provided by Company and/or collected and stored by NINJIO in connection with the provision of the Platform, about the Company’s Authorized Users, excluding NINJIO Data.
1.6 “Company Data” shall mean all data provided by Company to NINJIO in connection with its use of the Platform, as well as all data derived from the use of such provided data and/or collected by NINJIO in connection with the use of the Platform by Company, including its Authorized User Data, but specifically excluding NINJIO Data.
1.7 “Confidential Information” means any and all information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of the Agreement, as well as, specifically in the case of NINJIO, the Platform and any related Documentation, NINJIO Data, and specifically in the case of Company, the Company Data. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of the Agreement or any other agreement by the Receiving Party; (b) is or was known by the Receiving Party at or before the time such information was received from the Disclosing Party, as evidenced by the Receiving Party’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the Receiving Party with respect to such information; (d) is independently developed by the Receiving Party without any breach of the Agreement, as evidenced by the Receiving Party’s contemporaneous tangible (including written or electronic) records; or (e) is approved for release in advance in writing by the Disclosing Party, as applicable.
1.8 “Documentation” means all operating manuals, user manuals, training materials, guides, product specifications, and technical manuals relating to the Platform.
1.9 “EULA” means NINJIO’s End User License Agreement available at www.ninjio.com/eula.
1.10 “Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.
1.11 “NINJIO Data” means administrative and technical data related to the Platform and the use by NINJIO’s customers and their authorized users use of the Platform, including information related to Platform errors, bugs, areas for improvement, and related system data.
1.12 “NINJIO Products” means NINJIO’s proprietary cybersecurity awareness training content, including audio and video learning episodes, emails, articles, and interactive learning and awareness testing features, designed to empower employees, executives, and organizations to protect and defend against cybersecurity threats, including simulated phishing programs, behavioral science-based training related to recognizing cybersecurity threats, and legal compliance training, as further described at www.ninjio.com/products, including all Intellectual Property Rights therein.
1.13 “Order Form” means an order form, whether in paper format or online format, that incorporates these Terms by reference from time to time, pursuant to which Company orders Platform access for the Company’s Authorized Users to those NINJIO Products set forth therein.
1.14 “Platform” means NINJIO’s cloud-based and/or hosted platform provided on a software as a service basis, as more particularly identified in an Order Form, as well as all Software comprising a portion thereof and all of the NINJIO Products (regardless, in the case of the NINJIO Products, as to how such NINJIO Products are delivered or hosted), as well as any applications, inventions, or other technology developed by or on behalf of NINJIO, its licensors, partners, or Affiliates in connection with its performance of this Agreement.
1.15 “Software” means all software code comprising all or a portion of the Platform, made available by NINJIO for use by Company, including any modified versions, updates or upgrades thereto that may be provided to Company by NINJIO, but does not include source code.
2. PLATFORM ACCESS
2.1 Access to NINJIO Platform and NINJIO Products.
(a) Subject to the terms and conditions of these Terms and each applicable Order Form, NINJIO hereby grants Company the right, during the term set forth in the Order Form, to access and use the Platform and/or the NINJIO Products (as specified in the Order Form) for the purposes set forth in the Order Form through Company’s Account. Subject to Company’s timely provision of all information reasonably request by NINJIO to facilitate the onboarding of Company’s Authorized Users, NINJIO will use commercially reasonable efforts to initiate onboarding of the Company and its Authorized Users within five (5) days following the Effective Date or, in the alternative, such future date as the Parties may mutually agree in writing (email sufficing). Delays in the onboarding process shall not modify the Term nor excuse any of Company’s obligations pursuant to the Agreement including its payment obligations.
(b) NINJIO will provide Company with user logins and passwords for its Administrators (as set forth in an Order Form) to access the Company’s Account for the Platform. Each Administrator can use such credentials to access the Company’s Account to create user logins and passwords for additional Administrators and/or Authorized Users. Company and its Administrators shall not share the user logins and passwords with, or otherwise allow access to the Platform and Account by any other individual or entity. Company shall provide to NINJIO all required information, which must be correct, current and complete, in order to create the Account. Company is responsible for maintaining the confidentiality of the user login and password Company is given to access the Account, and Company is fully responsible for all activities that occur under the Account. Company shall notify NINJIO immediately of any unauthorized use of an Administrator’s login and password and/or improper access to the Platform by its Authorized Users and/or any other individual or entity of which it becomes aware.
(c) As set forth in an Order Form and/or as may be subsequently agreed by the Parties in writing (email sufficing), NINJIO shall make the Platform or portions thereof (i.e., certain of the NINJIO Products) available to Company’s Authorized Users by delivering to Company (or its Authorized Users), or allowing Company (or its Administrators) to download, via electronic means, Sharable Content Object Reference Model (SCORM) compliant and/or other file types that comprise a portion of the Platform. Company shall be solely responsible for loading such portions of the Platform into Company’s SCORM compliant learning management system or other Company provided delivery system. Downloadable content only applies to certain learning products comprising a portion of the NINJIO Products, the availability and supported formats for which may change from time to time and without notice in NINJIO’s sole discretion. Any Company requested modifications to the included file types, including custom content creation or other file types requested by Company, may be subject to an additional charge, as subsequently agreed by the Parties in an Order Form.
(d) NINJIO will provide Company with technical and support services as described in its Technical & Support Services outline, available at www.ninjio.com/sla. Technical and Support Services offered are subject to change from time to time without notice.
2.2 Company Obligations. Company understands and agrees that each Authorized User must agree to be bound by the EULA before they will be permitted access to the Platform and/or any NINJIO Products (as applicable) by NINJIO. The EULA is subject to change from time to time by NINJIO in its sole discretion without notice from NINJIO, except for any web-based or click-to-agree notification that NINJIO may provide in connection with such update. Company shall be responsible and liable for any breach of the EULA by its Authorized Users. Exclusive of any Software comprising a part of the Platform, Company shall be solely responsible, at its sole cost and expense, for (i) providing and maintaining all hardware, software, electrical and other physical requirements necessary for Company’s use of the Platform, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth, or other equipment, software and services required to access and use the Platform, (ii) ensuring that all of the foregoing are compatible with the Platform, and (iii) complying with all system requirements provided by NINJIO, including as may be set forth in the Documentation. If Company’s Account or that of its Authorized Users suffers, or Company is otherwise made aware of, a security breach, Company shall promptly (within 24 hours), notify NINJIO so that NINJIO can take appropriate precautions and provide any necessary notices to its other customers. Company shall take prompt and necessary action to limit and mitigate any such security breach.
2.3 Permitted Use; Limited License. Subject to Company’s compliance with these Terms and the terms and conditions of an Order Form, as well as any additional usage requirements, restrictions, documentation and policies NINJIO may reasonably provide to Company from time to time upon at least thirty (30) days prior written notice to Company, NINJIO hereby grants to Company during the Term a limited, revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive license and right to access and use the Platform and related Documentation for the purposes set forth in the Order Form, including any subsequent updates and upgrades thereto.
2.4 Restrictions. Company agrees that Company will not, nor will Company allow or facilitate a third party to, directly or indirectly (i) reproduce or modify the Platform or any portion thereof, (ii) use any device, software or routine to interfere with the proper working of the Platform or any portion thereof, (iii) use the Platform or any portion thereof in any manner other than as permitted by the Order Form and these Terms, (iv) share or provide access to the Platform to any third party (other than Authorized Users) or that might otherwise benefit a third party, (v) use automated means, including screen capture software, spiders, robots, crawlers, data mining tools, or similar data gathering methods to download the Platform or any portion thereof, or (vi) permit the Platform or any portion thereof to become incorporated into any other content. Without limiting the foregoing, Company further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the Platform infrastructure, as reasonably determined by NINJIO. NINJIO reserves all rights not expressly granted under the Agreement.
2.5 Third Party Integrators. Company shall be solely responsible for all actions of and agreements with third parties engaged by Company to provide any integrations of the Platform with Company’s infrastructure.
3. FEES AND PAYMENT TERMS.
3.1 Fees. Company shall pay NINJIO the fees set forth in the Order Form with respect to the Platform use provided thereunder, including any per Authorized User fees set forth therein (the “Fees”). Unless otherwise set forth in an Order Form, all amounts will be due and payable at the time of execution of an Order Form. NINJIO reserves the right to terminate and/or suspend the provision of the Platform upon ten (10) days prior written notice to Company of a failure to timely pay any fees due and owing pursuant to an Order Form. Company shall pay a finance charge of 1.5% per month on any outstanding balance of Fees after the due date therefor, as set forth in the Order Form, or the maximum permitted by law, if lower. Company shall be liable for all costs of collection, including attorneys’ fees and costs. Company shall be responsible for all sales, use and related taxes associated with its payment obligations pursuant to this Agreement, with the exception of taxes on NINJIO’s income. NINJIO may institute up to a five percent (5%) price increase at each Renewal Term without notice to Company and such increase will be calculated based on the prices paid by Company for the immediately preceding Initial Term or Renewal Term as contemplated in the Order Form. In the event NINJIO institutes a price increase of more than five percent (5%) and/or makes other changes to its fee structure that results in an increased price of greater than five percent (5%), NINJIO will provide Company written notice at least ninety (90) days prior to the commencement of such Renewal Term.
3.2 Confirmation of Authorized Users. In order to track the number of Authorized Users authorized by Company, NINJIO will periodically count the number of users accessing the Platform or any portion thereof (including the NINJIO Products and including access via email or web-based interface) that are made available to Company on a learning management system provided and hosted by NINJIO or its designee. To the extent that an Administrator adds Authorized Users in excess of the maximum number specified in the Order Form, NINJIO shall have the right to charge Company for such additional Authorized Users on a pro rata basis for the remainder of the Term of the Order Form (including any automatic renewals thereof) at the per Authorized User rate set forth in the Order Form. To the extent the Platform or any portion thereof is downloaded by Company, NINJIO may request that Company complete a Confirmation of Authorized Users Form (the “Confirmation Form”) on the Effective Date and every six (6) months thereafter, which Company shall complete within ten (10) business days of NINJIO’s written request (email sufficing) for same, which Confirmation Form shall indicate the number of Authorized Users who had access to the Platform or any portion thereof from either (a) the Effective Date, or (b) since the last submission by Company of a Confirmation Form. Upon request by NINJIO at any time, Company shall provide a report signed by a duly authorized representative of Company, identifying the number of users who have accessed the Platform or any portion thereof. To the extent that the number of users of the Platform or any portion thereof exceeds the number of Authorized Users set forth in the Order Form, Company shall pay NINJIO additional per Authorized User fees, as set forth in the Order Form, for the remainder of the Term, as contemplated in the example above.
3.3 Fee Disputes. In the event Company disputes NINJIO’s calculation of Fees, it shall provide notice to NINJIO within ninety (90) days of the date of Company’s receipt of the applicable invoice from NINJIO and the Parties shall then work together for a period of thirty (30) days to resolve such dispute in good faith. If the Parties are unable to resolve such dispute at the end of such thirty (30) day period, then each Party may pursue its claims at law or in equity for resolution and such dispute shall be resolved by the trier or fact. If Company fails to send notice within such ninety (90) day period, Company shall be deemed to have accepted the accuracy of such invoice and to have waived any right to challenge, dispute, charge-back, and/or reverse payment with respect thereto. Any such Company disputes must be submitted to NINJIO at ar@ninjio.com.
4. INTELLECTUAL PROPERTY
4.1 Proprietary Rights. As between NINJIO and Company, NINJIO owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Platform, the NINJIO Products, any related Documentation, and the NINJIO Data (collectively, the “NINJIO Property”). Use of the NINJIO Property for any purpose not set forth in the Agreement is prohibited. Company acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with NINJIO’s rights with respect to the NINJIO Property. The Platform is protected by copyright and other intellectual property laws and by international treaties. As between NINJIO and Company, Company owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Company Data (the “Company Property”). Use of the Company Property for any purpose not set forth in the Agreement is prohibited. NINJIO acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Company’s rights with respect to the Company Property. The Company Property may be protected by copyright and other intellectual property laws and by international treaties. Subject to the foregoing, the Company grants to NINJIO an irrevocable, royalty-free, limited, non-exclusive, worldwide license and right to access and use Company Data (i) as necessary to perform its obligations pursuant to this Agreement and each Order Form during the Term, (ii) for internal diagnostic, administrative, and corrective purposes during and after the Term, and (iii) to the extent rendered incapable of specifically identifying Company and/or any End User of Company as the source of such data (i.e., de-identified, anonymized, and aggregated) for benchmarking, marketing, and/or improving it products and services in perpetuity.
4.2 No Reverse Engineering. Except as provided in Section 2.3 (Permitted Use; Limited License) above, Company has no rights or licenses with respect to the Platform. Without limiting the generality of the foregoing, except as expressly provided in an Order Form and/or these Terms, Company may not (a) sell, resell, copy, distribute, rent, lease, lend, sublicense, translate, merge, adapt, vary, transfer, assign or make the Platform available to any third party or use the Platform on a service bureau basis, (b) modify, alter, translate, decompile, reverse engineer, or disassemble the Platform, or otherwise attempt to derive any of NINJIO’s Intellectual Property Rights in the Platform, (c) create derivative works based on the Platform; (d) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Platform during the use and operation thereof; or (e) copy any of the Documentation. As between Company and NINJIO, any changes to, modifications to, or derivative works of the Platform and/or any portion thereof shall become the exclusive property of NINJIO.
4.3 No License. Nothing in any Order Form or these Terms shall be deemed to grant Company any license to use the Platform other than as expressly stated therein or herein.
4.4 Platform Feedback. Company may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the Platform or modifications or enhancements thereto (the “Company Input”). Any Company Input is provided on a non-confidential basis regardless of any suggestion to the contrary in any Company communication, and Company hereby grants NINJIO a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Company Input (directly or through third parties) in any manner without compensation or liability to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing NINJIO’s products and services. Any such Company Input is provided by Company “as is” and “with all faults” and without any representation or warranty.
5. CONFIDENTIALITY
5.1 Restrictions on Use and Disclosure. Each Receiving Party agrees: (i) to protect and safeguard the Disclosing Party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and, in any event, not less than reasonable care; (ii) to restrict access to the Disclosing Party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, contractors, and service providers who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by the Agreement; and (iii) not to use, or permit others to use, the Disclosing Party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under the Agreement. Each Receiving Party shall return or destroy all Confidential Information of the Disclosing Party upon the termination or expiration of the Agreement or upon the request of the Disclosing Party; provided, however, neither Party shall be required to return or destroy information or materials that it must retain during or after termination or expiration of the Agreement in order to receive the benefits of the Agreement or properly perform in accordance with the Agreement or in order to remain compliant with a valid law, regulation, or court or administrative order.
5.2 Exceptions. Notwithstanding any other provision of any Order Form or these Terms, each Receiving Party may disclose Confidential Information of the Disclosing Party if such disclosure is required by an order of a court or other governmental authority, law or regulation, but only to the extent that any such disclosure is necessary and after notice to the Disclosing Party if practicable and legally permissible. In such case, the Receiving Party shall, at the Disclosing Party’s expense, assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure, or in otherwise minimizing and limiting the breadth and scope of such disclosure.
5.3 Confidentiality of Agreement. Each Party agrees that the terms and conditions, but not the existence and general nature, of the Agreement shall be treated as Confidential Information, provided, however, that each Party may disclose the terms and conditions of the Agreement: (i) as required by any court or other governmental body, subject to the provisions of Section 5.2 (Exceptions); (ii) to its legal counsel; (iii) in confidence, in connection with the enforcement of this Agreement or rights under the Agreement; or (iv) in confidence, in connection with an actual or prospective merger, acquisition or similar transaction, provided that if the Company is seeking to so disclose pursuant to subsections (i) and/or (iv) above, it must provide advance written notice to NINJIO of any proposed disclosure of any aspect of the Platform and/or NINJIO Products and provide NINJIO with an opportunity to request appropriate protections of its Confidential Information (e.g., protective order or confidential treatment) and shall assist in such efforts using its reasonable best efforts.
5.4 Remedies. Each Party understands and acknowledges that any disclosure or misappropriation of any of the Disclosing Party’s Confidential Information in violation of the Agreement may cause the Disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the Disclosing Party shall deem appropriate, including without the necessity of posting a bond. Such right of the Disclosing Party shall be in addition to the remedies otherwise available to the Disclosing Party at law or in equity.
5.5 Backup and Recovery Systems. The Receiving Party will be entitled to retain a copy of the Disclosing Party’s Confidential Information to the extent required for back-up, recovery, contingency planning, or business continuity purposes, provided that such Confidential Information will at all times remain Confidential Information of the Disclosing Party and subject to the terms and conditions of this Agreement. To the extent not otherwise permanently deleted or overwritten in the ordinary course of business, the Receiving Party will not access such Confidential Information except to the extent required for backup, recovery, contingency planning, or business continuity purposes and, if restored or otherwise made accessible, the Receiving Party will permanently delete such Confidential Information forthwith.
6. TERM AND TERMINATION
6.1 Term. Unless terminated earlier by either Party in accordance with Section 6.2 (Termination) or the terms of an applicable Order Form, the Agreement shall commence on the Effective Date of the applicable Order Form and remain in effect for the term of time set forth in such Order Form (the “Initial Term”). Notwithstanding the foregoing, unless otherwise set forth in the applicable Order Form, each Order Form shall be automatically renewed for additional, successive terms equal in duration to the Initial Term of the applicable Order Form (each, a “Renewal Term”) unless, at least sixty (60) days prior to the expiration of the Initial Term or the then-applicable Renewal Term, either Party provides the other Party with written notice of its desire not to renew such Order Form. Such right of non-renewal may be exercised by either Party, with or without cause.
6.2 Termination. The Agreement and the provision of the Platform may be terminated immediately upon written notice:
(a) by NINJIO if Company breaches any material provision of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach;
(b) by Company if NINJIO breaches any material provision of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach; or
(c) by either Party if the other Party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such Party shall only be in breach if such petition or proceeding has not been dismissed within sixty (60) days.
6.3 Effect of Termination or Expiration. Upon termination or expiration of the Agreement: (i) NINJIO shall deauthorize all Administrator User logins and passwords and terminate Company’s and its Authorized Users access to the Account and the Platform, (ii) Company shall immediately cease all use of the Platform and delete and destroy any and all NINJIO Products in its possession, and (iii) each Party shall return or destroy the other Party’s Confidential Information in its possession, subject at all times to Section 5.5 (Backup and Recovery Systems). hereof. In the event of termination, except as a result of NINJIO’s breach, Company shall not be entitled to a refund or credit of any of the Fees set forth in an Order Form, and NINJIO will promptly issue an invoice for and Company will promptly pay any additional Fees, if any, payable by Company with respect to the post-termination period through the end of the Term. In the event of termination by Company as a result of NINJIO’s breach, Company shall be entitled to a refund or credit of any of the pre-paid, unused Fees paid by it to NINJIO.
6.4 Survival of Provisions. Sections 1 (Definitions), 2.4 (Restrictions), 3 (Fees and Payment Terms), 4 (Intellectual Property), 5 (Confidentiality), 6.3 (Effect of Termination or Expiration), 6.4 (Survival of Provisions), 7.3 (Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), 10 (Data and Privacy Concerns), and 11 (General Terms), as well as any other terms hereof that by their intent or meaning would reasonably be deemed as intended to so survive, shall survive any termination or expiration of this Agreement. No termination hereunder shall constitute a waiver of any rights or causes of action that either Party may have based upon events occurring prior to the termination date.
7. Warranties.
7.1 Mutual Warranties. Each Party hereby represents, warrants, and covenants to the other that: (i) it has the power to enter into and perform the Agreement; (ii) the Agreement’s execution has been duly authorized by all necessary corporate action of the Party; (iii) the Agreement constitutes a valid and binding obligation on the Party, enforceable in accordance with its terms; (iv) no consent or approval of any other person or governmental authority is necessary for the Agreement to be effective; (v) neither the execution or delivery of an Order Form nor the consummation of the transactions contemplated by thereby or hereby would constitute a default or violation of the Party’s charter documents and/or other agreements; and (vi) it will comply with all applicable laws in the performance of its obligations under the Agreement.
7.2 NINJIO Warranties. NINJIO hereby represents that the Platform or any portion thereof provided to Company does not and will not violate or infringe upon the Intellectual Property Right of any third party, and that the Platform or any portion thereof provided to Company does not include any content or functionality or any programming devices (e.g., viruses, key locks, etc.) that would permit NINJIO personnel or other third parties to access any of Company’s equipment connected to the Platform without Company’s authorization. NINJIO will provide commercially reasonable levels of security for the Platform provided by NINJIO hereunder and networks being utilized by NINJIO in connection with the provision of the Platform hereunder.
7.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE PLATFORM, NINJIO PRODUCTS, AND ANY IMPLEMENTATION SERVICES PROVIDED IN CONNECTION THEREWITH ARE PROVIDED "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT THE PLATFORM IS A TRAINING TOOL AND THAT NINJIO SHALL HAVE NO LIABILITY WHATSOEVER TO COMPANY OR ANY OF ITS AUTHORIZED USERS RELATING TO OR ARISING FROM ANY ACTUAL SECURITY BREACH OR I.T. SECURITY ISSUE CAUSED BY A THIRD PARTY, INCLUDING, WITHOUT LIMITATION, IDENTITY THEFT, HACKING, TAMPERING, RANSOMWARE, UNAUTHORIZED ACCESS OR OTHER SIMILAR ISSUES. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, COMPANY AND ITS AUTHORIZED USERS ASSUME ALL RISK OF DAMAGE AND LOSS RESULTING FROM USE OF THE PLATFORM AND COMPANY ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PLATFORM AND/OR THE RESULTS FROM USING THE PLATFORM ARE SUFFICIENT FOR COMPANY’S PURPOSES AND THE USE AND IMPLEMENTATION OF, AND FAILURE TO USE OR IMPLEMENT, SECURITY CONTROLS NECESSARY OR APPROPRIATE FOR COMPANY. WITHOUT IN ANY WAY LIMITING THE FOREGOING, THE NINJIO PRODUCTS PROVIDED THROUGH THE PLATFORM ARE NOT INTENDED TO PRESENT THE ONLY, OR NECESSARILY THE BEST, METHOD OR PROCEDURE FOR PREVENTING OR MANAGING A GIVEN SECURITY BREACH OR I.T. SECURITY ISSUE, BUT RATHER PRESENT POSSIBLE APPROACHES AND/OR OPINIONS OF NINJIO. COMPANY'S EXCLUSIVE REMEDY (AND NINJIO’S SOLE OBLIGATION) FOR VIOLATION OF ITS WARRANTIES SET FORTH IN THE AGREEMENT SHALL BE FOR NINJIO TO PROMPTLY REPLACE THE DEFECTIVE PORTIONS OF THE PLATFORM; PROVIDED THAT IF NINJIO IS UNABLE TO REPLACE THE SAME WITHIN NINETY (90) DAYS OF NOTIFICATION BY COMPANY OF A BREACH, COMPANY'S SOLE REMEDY IS TO TERMINATE THE AGREEMENT, AT WHICH TIME NINJIO WILL REFUND AN EQUITABLE PORTION OF ANY FEES PAID IN ADVANCE BY COMPANY PURSUANT TO EACH APPLICABLE ORDER FORM IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS.
8. LIMITATION OF LIABILITY
8.1 Exclusion of Damages. EXCEPT FOR DAMAGES ARISING (1) IN CONNECTION WITH A PARTY’s BREACH OF SECTIONS 2.4 (Restrictions), 4 (Intellectual property), 5 (confidentiality) and/OR 10 (data and Privacy Concerns) HEREOF, (2) PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONs pursuant to section 9 (indemnification) hereof, AND/OR (3) AS A RESULT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS Section 8.1 (EXCLUSION OF DAMAGES) WILL BE CONSTRUED TO LIMIT EITHER PARTY’s OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 9 (INDEMNIFICATION) FOR DAMAGES AWARDED TO A THIRD PARTY EVEN IF SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES SUFFERED BY THAT THIRD PARTY.
8.2 Limitation on Liability. EXCEPT FOR DAMAGES ARISING (1) FROM A PARTY’S PAYMENT OBLIGATIONS PURSUANT TO SECTION 3 (fees and payment terms) AND EACH APPLICABLE ORDER FORM, (2) IN CONNECTION WITH A PARTY’s BREACH OF SECTIONS 2.4 (restrictions), 4 (intellectual property), 5 (confidentiality), and/OR 10 (dATA And privacy concerns) HEREOF, (3) PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONs pursuant to section 9 (indemnification) hereof, AND/OR (4) AS A RESULT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, IN NO EVENT WILL either party’s LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO NINJIO PURSUANT TO ALL APPLICABLE ORDER FORMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION RELATING TO SUCH LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, NINJIO’S AGGREGATE LIABILITY TO COMPANY SHALL BE LIMITED TO ONE MILLION DOLLARS ($1,000,000) IN ALL CASES.
9. INDEMNIFICATION.
9.1 Indemnification from Company. Company shall indemnify and hold NINJIO and its Affiliates, and their employees, representatives, agents, directors, officers, managers and members (the “NINJIO Indemnified Parties”) harmless, and at NINJIO’s option defend the NINJIO Indemnified Parties, from and against any damages, losses, costs, settlements, judgments, awards, fines, penalties, interest, liabilities, or expenses (including without limitation, reasonable attorneys’ fees and disbursements and court costs) (collectively, “Losses”) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the NINJIO Indemnified Parties arising out of (i) Company’s use of the Platform other than in accordance with the Agreement and applicable law, (ii) any alleged breach by Company of any provision of the Agreement, and/or (iii) Company’s gross negligence or willful misconduct.
9.2 Indemnification from NINJIO. NINJIO shall indemnify and hold Company and its Affiliates, and their employees, representatives, agents, directors, officers, managers, members and/or shareholders (the “Company Indemnified Parties”) harmless, and at Company’s option defend the Company Indemnified Parties, from and against any Losses incurred in connection with any Claim brought against any of the Company Indemnified Parties arising out of any allegation that the Platform violates or infringes upon the Intellectual Property Rights of any third party. If any of the Platform becomes, or in NINJIO’s opinion is likely to become, the subject of an infringement claim under the Agreement, NINJIO may, at its sole option and expense, either (i) procure for Company the right to continue using the Platform, (ii) replace or modify the Platform so that it becomes non-infringing, or (iii) solely if clauses (i) and (ii) are not commercially viable, terminate the Agreement. Notwithstanding the foregoing, NINJIO will have no obligation with respect to any infringement claim based upon (i) any use of the Platform not in accordance with the Agreement, (ii) any use of the Platform in combination with other products, equipment, or software not supplied by NINJIO, where such combination gives rise to the Claim, (iii) any modification of the Platform by (a) any person other than NINJIO or its authorized agents or subcontractors or (b) by NINJIO or its authorized agents or subcontractors in compliance with the designs, specifications or instructions of Company; (iv) the direct or contributory infringement of any process patent by Company through the use of the Platform; and (v) continued allegedly infringing activity by Company after Company has been notified of the possible infringement and been provided with a non-infringing alternative.
9.3 Indemnity Process. Should any Claim subject to indemnity be made against a Party hereto (an “Indemnitee”), the Indemnitee agrees to provide the other Party (the “Indemnitor”) with prompt written notice of the Claim. The Indemnitor will control the defense and settlement of any Claim, provided that any such settlement shall require the prior written approval of the Indemnitee, such approval not to be unreasonably conditioned, withheld or delayed. The Indemnitee agrees to cooperate with the Indemnitor and provide reasonable assistance in the defense and settlement of such Claim. The Indemnitor is not responsible for any costs incurred or compromise made by the Indemnitee unless the Indemnitor has given prior written consent to the cost or compromise. If a conflict of interest arises between the Indemnitor and the Indemnitee for the types of claims set forth herein, and the Indemnitee under the appropriate section sends a written notice of such conflict of interest to the Indemnitor, then the Indemnitor under that section shall provide for the indemnification of the Indemnitee for (i) the cost to hire and retain separate counsel and (ii) the cost of investigation, litigation and/or settlement of such Claims. If a Claim is judicially determined to have been caused by both the Indemnitee and the Indemnitor, the apportionment of liability shall be shared between the Parties based upon the comparative degree of each Party’s judicially determined responsibility and to the extent necessary, a refund of all pre-funded indemnity expenses shall be made if necessary, in accordance with the foregoing.
10. DATA AND PRIVACY CONCERNS. The Parties agree to be bound by and to adhere to the Data Protection Addendum available at https://ninjio.com/compliance/dpa/ (the “DPA”).
11. General Terms
11.1 Independent Contractors. The relationship of NINJIO and Company established by the Agreement is that of independent contractors, and nothing contained in the Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the Parties.
11.2 Governing Law; Jurisdiction. Each Order Form and these Terms are to be construed in accordance with and governed by the internal laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the Parties. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, the Agreement may be brought against any of the Parties only in the courts of the State of California, located in or serving Los Angeles County, California or, if it has or can acquire the necessary jurisdiction, in the United States District Court for the Central District of California. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION BETWEEN THE PARTIES.
11.3 Assignment. The Agreement may not be assigned, in whole or in part, by Company without the prior written consent of NINJIO, except in the event of a merger of the Company with and into a third party or the sale of all or substantially all of the Company’s assets to a third party, provided such third party agrees to be fully bound by the terms of this Agreement and each Order Form. NINJIO shall have the right to assign or otherwise transfer the Agreement or any of its rights or obligations hereunder. Any purported assignment, sale, transfer, delegation or other disposition by Company, except as permitted herein, shall be null and void. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
11.4 Recovery of Fees by Prevailing Party. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one Party against the other Party relating to the Agreement or the breach or alleged breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
11.5 Severability. If the application of any provision of the Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of the Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
11.6 Waiver. A waiver of a Party’s breach of any provision of these Terms or an applicable Order Form will not operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of that or any other provision of these Terms or applicable Order Form or any other Order Form.
11.7 Force Majeure. Neither Party will be deemed in default of the Agreement to the extent that performance of its obligations (other than payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.
11.8 Notices. Any notice or approval desired or required to be provided to a Party hereunder will be given to such Party in writing by overnight messenger (notice deemed effective the business day after such messenger’s acceptance (which acceptance must occur before such messenger’s required deadline) for next business day service), mail (notice deemed effective three (3) days after mailing), or e-mail (noticed deemed effective upon receipt of a return e-mail, other than an automatically generated return e-mail, indicating that the e-mail notice has been received). The mailing address for NINJIO shall be 880 Hampshire Road, Suite B, Westlake Village, CA 91361 and the email address is legal@ninjio.com. The address for Company shall be the address and email address set forth in the Order Form. A Party may designate a substitute address by written notice to the other with the effectiveness of such notice governed by the terms of this Section. If the final day for giving notice is a Saturday, Sunday or nationally recognized holiday then the time for giving such notice will be extended to the next business day.
11.9 Marketing. Company hereby grants to NINJIO a non-transferable, non-exclusive, non-sublicensable, royalty-free, right and license to use and display those trade names, trademarks, service marks, and logos (collectively, “Marks”) of the Company in fulfillment of its obligations under the Agreement and in other promotional materials for NINJIO’s business and services for the purposes of promoting the existence of the relationship between the Parties as set forth in an Order Form.
11.10 Counterparts. Each Order Form may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Electronic, facsimile or scanned signatures shall have the same force as an original signature. Any Order Form incorporating these Terms by reference shall be deemed the Agreement of the Parties.
11.11 Entire Agreement. The provisions of the Order Form and these Terms constitute the entire agreement between the Parties with respect to the subject matter hereof, and such Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter. In the event of any conflict between the terms of an applicable Order Form and these Terms, the terms of the Order Form shall control. The terms of an Order Form shall only be applicable to such Order Form and no other Order Form executed by the Parties. In the event of any conflict between the terms of the DPA and these Terms, the terms of the DPA shall control. Use by Company of online agreements, supplemental purchase order terms or addenda, and similar acknowledgements shall specifically be of no force or effect and shall not serve to modify, amend, or supersede this Agreement.
11.12 Amendments. The Agreement may be amended only by a writing signed by both Parties, provided that the execution by the Parties of an Order Form amending these Terms, shall control as between the Parties and the interpretation of these Terms.
11.13 Headings. The headings to the sections of these Terms are used for convenience only.
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