HomeMy WebLinkAboutIT18-309 - Extension - Articulate Global, LLC - Articulate 360 Subscription Renewal - 12/20/24 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr:
Agreement Routing Form Dir Asst:
-001
• For Approvals,Signatures and Records Management Dir/Dep:
KEN T This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional)
WASHINGTON Sheet forms.
Originator: Department:
Ikhra Mohamed IT
Date Sent: Date Required:
c 12/19/2024 12/31/2024
Q Authorized to Sign: Date of Council Approval:
QFZ]Director or Designee N/A
Budqet Account Number: Grant? Yes r1_71No
52001730.64260.1800
Budget?[Z]YesD No Type: N/A
Vendor Name: Category:
Articulate Global, LLC Contract
Vendor Number: Sub-Category:
1888209 Extension
0
Project Name: Articulate 360 Subscription Renewal
E
0 Project Details:Renewal of Articulate 360 subscription, at a cost $1,651.90, including any applicable
Washington State Sales Tax, under Director's signature authority. Procured via Pcard.
IC
Agreement Amount: $1 651.90 Basis for Selection of Contractor: Direct Negotiation
(1) *Memo to Mayor must be attached
cu
Start Date: 12/16/2024 Termination Date: 12/15/2025
01
Q Local Business'El YesFv-]No* If meets requirements perKCC3.70.100,pleosecomplete"VendorPurchase-LocolExceptions"formonCityspoce.
Business License Verification:Yes ElIn-Process Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number:
Yes FNo IT18-309
Comments:
3 JT4 �
3 Mike Carrington, IT Director
$A
3 Date: 12/20/24
�a
c
M
Vf
Date Routed to the City Clerk's Office: 12/23/24
Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20210513
articulate
244 5th Ave
New York, NY 10001-7604
800-861-4880
biz@articulate.com
Order Confirmation Order#00323946
12/16/2024 10:54 AM
Organization Address (Taxable Address): Subscription:ART-12085
City of Kent Term: 12/16/2024- 12/15/2025
Lynnette Smith
220 4th Ave S Download W9
Kent,WA 98032
USA
ita@kentwa.gov
Billing/Payment Info:
Credit Card:
Visa 1 3491 1 5/2027
Code Product Quantity Cost
360-TEAM Articulate 360 Teams 1 $1,499.00
Subtotal $1,499.00
Tax(10.2%) $152.90
Total (USD) $1,651.90
Payment(USD) -Visa 3491 1 5/2027 $1,651.90
Balance Due (USD) $0.00
Terms and Privacy Policy
You've ordered an annual subscription to Articulate 360.Please take a look at our Privacy policy(https://www.articulate.com/privacy)and terms of service
(httos://www.articualte.com/360/terms)as these documents define the legal agreement between you and Articulate.We may update these documents periodically.If there's a conflict
between these terms(including payment terms)and the terms of any order,purchase order,quote,order confirmation,customer or third-party portals,these terms will control,unless the
parties have mutually agreed to other terms.
Activation
We will endeavor to activate your subscription to Articulate 360 by the date noted above.However,if there's a delay,we'll postpone the subscription start date and extend the subscription
period at no cost to you.You can always confirm activation status and adjustments to terms by logging into your Articulate 360 account or calling our customer care team at 1-800-861-
4880.
Account Information
To process this order,we need you to provide proper account information,including the appropriate email contact(s)and accurate billing information.Please keep this information update
on your Articulate 360 account profile(httos,//account.articulate.com/).
Automatic Renewal
Your subscription will automatically renew on the term end date unless you cancel in accordance with our terms of service.We'll email the contact associated with your account before
renewal to provide notices of the approaching renewal date and any changes to the subscription pricing.If you'd like to make changes to your subscription before your renewal,please
contact the Customer Success team at success@articulate.com.
Articulate Terms of Service
Last Updated August 9, 2024
• Definitions
• Use of Services
• Customer Content
• Fees and Payment
• Mutual Representations and Warranties
• Customer's Warranty and Indemnification Obligations
• Articulate's Warranty and Indemnification Obligations
• Limitation of Liability
• Confidential Information
• Term; Termination
• Termination by Articulate
• Effect of Termination
• Investigations
• Export Control Laws
• Dispute Resolution
• Miscellaneous
• Jurisdiction-Specific Terms (if applicable)
THIS AGREEMENT ("Agreement") is entered into as of the date the Customer
accesses the Services ("Effective Date") by and between Articulate Global, LLC, a
Delaware limited liability company ("Articulate"). By accessing or using the Services,
Customer agrees to be bound by this Agreement.
1. Definitions
1.1 "Academic Version" means as described in Section 2.14.2.
1.2 "Account Information" means information about Customer's account and
information that Customer and its Users provide to Articulate in connection with (a)
the creation or administration of Customer's account; or (b) Articulate's
maintenance of Customer's account or the Services. For example, Account
Information includes names, usernames, passwords, phone numbers, email
addresses, workspace metadata, support communications, billing information, and
usage information associated with Customer's account.
1.3 "Affiliate" means with respect to a party, any entity that, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under common
control with, such party. For purposes of this definition, the "control" of an entity
(and the correlative terms "controlled by" and "under common control with") means
the direct or indirect ownership or control of more than 50% of the voting interests
of such entity.
1.4 "Al Features" means as described in Section 2.18.
1.5 "Articulate Content" means and includes, but is not limited to, Articulate-created
files, such as videos, character images, illustrations, templates, interactions, or other
prebuilt content Articulate makes accessible through the Services.
1.6 "Articulate 360 Teams" means as described in 2.6.13.
1.7 "Beta Version" means as described in Section 2.14.1.
1.8 "Confidential Information" means all non-public, confidential, or proprietary
information of a party, including, but not limited to, specifications, samples,
patterns, designs, plans, drawings, documents, data, business operations, customer
lists, pricing, discounts, or rebates, financial information, product development,
software (including source and object code), and proprietary information, disclosed
by a party ("Disclosing Party") to a receiving party ("Receiving Party"), whether
disclosed orally or disclosed or accessed in written, electronic, or other form or
media, and whether or not marked, designated, or otherwise identified as
"confidential," or reasonably should be considered confidential given the nature of
the information and the circumstances of its disclosure in connection with this
Agreement, is confidential, solely for the parties' use in performing this Agreement
and may not be disclosed or copied unless authorized by the Disclosing Party in
writing. Confidential Information does not include any information to the extent the
Receiving Party can document (a) is generally available to the public other than as a
result of the Receiving Party's breach of this Agreement; (b) is obtained on a non-
confidential basis from a third-party that was not legally or contractually restricted
from disclosing such information; or (c) is independently developed by Receiving
Party without using any Confidential Information.
1.9 "Customer" means any one of these scenarios: (a) the individual accepting the
Agreement on its own behalf; (b) the applicable organization, company, or other
legal entity, including Affiliates of such which have entered into Order Forms when
an individual accepts the Agreement on its behalf; or (c) the applicable organization,
company, or legal entity accepting the Agreement on behalf of itself and any of its
Affiliates which have entered into Order Forms. For clarity, when an individual joins
an applicable organization, company, or legal entity's workspace, such organization,
company, or legal entity is the Customer, regardless of whether such individual is an
independent contractor or employee.
1.10 "Customer Content" means any data, fonts, images, templates, information,
content, or material provided by Customer or a User to Articulate or uploaded,
imported, or submitted to the Services by Customer or its Users in the course of
using the Service, including any Output if Customer uses Al Features. Customer
Content does not include Account Information.
1.11 "Documentation" means Articulate tutorials and user guides accessible
at: https://community.articulate.com/articles/tutorials-and-documentation
1.12 "End Product" means as described in Section 2.12.
1.13 "Excluded Claims" means as described in Section 7.2.
1.14 "Feedback" means as described in Section 3.4.
1.15 "Intellectual Property Elements" and "Intellectual Property Rights" mean
copyright, moral rights, trademark, trade dress, patent, trade secret, unfair
competition, right of privacy, right of publicity, and any other proprietary rights
(registered or unregistered) throughout the world, together with all applications for
any of the foregoing.
1.16 "Legal Order" means as described in Section 9.3.
1.17 "Optional Features" means any new or additional products, services, features,
and functionalities that are not a part of the updates or upgrades to the Services and
are available to the Customer for an additional cost, including any Al Features.
1.18 "Order Form" means any ordering documentation, regardless of form, agreed
to between the parties which set forth the Services accessed by the Customer and
any relevant pricing. Customer may execute multiple Order Forms under this
Agreement.
1.19 "Output" means as described in Section 2.18.
1.20 "Subscription Fees" means all fees associated with Customer's purchase of the
Services.
1.21 "Subscription Term" means the duration for which the Customer has
subscribed to the Services as outlined in the applicable Order Form.
1.22 "Services" means Articulate's "Articulate 360" services, which include
Articulate's Intellectual Property Rights therein and Third-Party Services that power
the Services, any related software applications, if added by Customer, any Optional
Features, the Articulate Content, and Documentation, and any updates or upgrades
to the Services provided to generally all customers.
1.23 "Users" means anyone authorized by Customer or on Customer's behalf to use
or access the Services in accordance with this Agreement or the applicable Order
Form. Users may be defined to include but are not limited to learners, seats,
subscribers, and end users for the applicable Services.
1.24 "Third-Party Services" means any third-party services, applications, products,
websites, connection, data, software, or integration that interoperates with the
Service. Third-Party Services include embedded content where the Services may
display a preview or link to the content.
2. Use of Services
2.1 Customer Account Information. Customer and its Users shall provide Account
Information to access or use the Services. Customer and its Users shall use the
unique email address provided by its organization. Customers and its Users agree to
(a) provide true, accurate, current, and complete information as prompted by the
sign-up process; (b) maintain and promptly update the information provided during
sign-up to keep it true, accurate, current, and complete; and (c) not share
Customer's Account Information with any third party. If Customer provides any
information that is untrue, inaccurate, outdated, or incomplete, or if Articulate has
reasonable grounds to suspect that such information is untrue, inaccurate, outdated,
or incomplete, Articulate, after giving the Customer prior notice, may suspend or
terminate Customer's access to the Services and refuse current or future use of any
of the Services.
2.2 Activation. The Services may require Customer to take certain steps to activate
Customer's license or validate Customer's account. If Articulate determines that the
Services have been used fraudulently or without authorization, Articulate may either
suspend or terminate the Services or reduce the functionality, operability, or
availability of the Services.
2.3 License/Use Rights. Subject to Customer's compliance with this Agreement and
applicable law, Articulate grants the Customer a limited, non-exclusive, non-
transferable (except as permitted in this Agreement) and non-sublicensable (only as
required to provide the Services), fee-bearing license to use the Services in
accordance with this Agreement, the applicable Documentation, and solely in
connection with Customer's internal business operations; provided that Customer's
applicable subscription for the Services is valid. Customer may allow its Users to use
the Services for this purpose, and Customer is responsible for its Users' compliance
with this Agreement.
2.4 Limitations. A User may activate the Services on up to two desktop devices and
up to two mobile devices at a time (maximum four total activations), provided these
activations are associated with the same Account Information. However, the Services
cannot be used simultaneously on these devices.
2.5 Responsible Use. Articulate is committed to protecting its employees, partners,
customers, and users from illegal or damaging actions by individuals or
organizations, knowingly or unknowingly, including virus attacks, compromise of
network systems and services, and legal issues. Articulate does not guarantee that
with all Users complying with this Section, all risks and potential liability will be
eliminated. Articulate will take commercially reasonable steps to ensure that the
likelihood of risk is reduced, but it cannot be completely eliminated. Customer must
promptly notify Articulate if (a) it becomes aware of or reasonably suspects any
illegal or unauthorized activity or a security breach involving Customer's accounts,
including any loss, theft, unauthorized use, or disclosure of Account Information; or
(b) is contacted by any governmental authority regarding its use of the Services
(including any Optional Features). Articulate's platform and systems, including but
not limited to computer equipment, software, operating systems, storage media,
network accounts, websites, and file transfer sites, are to be used for lawful and
legitimate business purposes during normal internal business operations. Customer
is responsible for all activity that occurs via the Customer's account. Subject to
Articulate's retention policy, Articulate may disclose any information, including
information about deactivated Users, to the relevant Customer upon request.
Accordingly, Users and other individuals should contact the relevant Customer with
any requests relating to their information that may be associated with the
Customer's use of the Services. Customer shall be responsible for monitoring and
controlling all activity, including all User activity, conducted through Customer's use
of the Services. The Services do not replace the need for Customer to maintain
regular data backups or redundant data archives of its Customer Content.
ARTICULATE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION,
DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER CONTENT.
2.6. Restrictions. Articulate and its respective Third-Party Services remain the sole
owner of all rights, titles, and interests in the Services. Articulate reserves all rights
not granted under this Agreement. Without limiting the generality of the foregoing,
Customer represents and warrants it shall not, and ensure any third party including
its Users shall not, nor through the use of any aspect of the Services:
2.6.1. Modify, port, adapt, improve, enhance, make copies of, or translate any
software or other Intellectual Property Elements underlying the Services or make any
derivative work from the Service except as expressly permitted in this Agreement;
2.6.2 Use any part of the Services, including any Articulate Content, any Optional
Features, or any Output to (a) train, improve, customize or develop any artificial
intelligence (including machine learning models), algorithms, or related technology
(including using as training data or for fine-tuning purposes); (b) to generate source
code; or (c) make decisions with legal implications, including compliance with legal
obligations;
2.6.3. Mislead anyone that the Output or End Product generated by the Al Feature is
human-generated;
2.6.4 Reverse engineer, decompile, hack, disable, interfere with, modify, copy,
disrupt, disassemble the features, functionality, integrity, or performance of the
Service, any third party use of the Services, or otherwise attempt to discover the
source code of the Services or other Intellectual Property Elements underlying the
Services unless permitted by relevant law and then only within the constraints of
that law. Any information supplied to or obtained by Customer under this Section is
confidential and proprietary information of Articulate, may be used by Customer
only for the purpose described in this Section, and will not be disclosed to any third
party or used to create any software that is substantially similar to the expression of
the software underlying the Services;
2.6.5 Permit timesharing, or use or offer the Services on a service bureau basis, or
permit the use of a User ID by more than one user, nor enable or allow others to use
the Services through Customer's account information and shall keep all passwords
and login information confidential;
2.6.6 Distribute, display, copy, outsource, republish, frame, sublicense, resell, host,
or stream the Services or allow unauthorized access to the Services, or otherwise
commercially exploit the Services outside the terms of this Agreement nor attempt
to disable, impair, or destroy the Services;
2.6.7 Access the Services to build a product or service that competes with our
Services;
2.6.8 Attempt to gain unauthorized access to the Services or related systems or
networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent
technological measures intended to control access to the Services or develop,
distribute, or use with the Services, products that circumvent the technological
measures;
2.6.9 Introduce, transmit, re-transmit, or store materials or software code on or
through the Services or through Customer Content that is harmful to the Services,
including our software, firmware, or related technology;
2.6.10 Copy, modify, host, stream, sublicense, or resell the Services, attempt to
disable, impair, or destroy the Services, nor rent, lease, sell, sublicense, assign, or
transfer Customer's rights in the Services except as expressed in this Agreement;
2.6.11 Make any copy of the software or other Intellectual Property Elements
underlying the Services without preserving all copyright and other proprietary
notices that appear on or in the Services or such software or other Intellectual
Property Elements;
2.6.12 Use Articulate's name, logo, trademarks, service marks, or other branding
elements without Articulate's prior written consent to be decided on a case-by-case
basis. Such consent, if granted, is subject to revocation by Articulate at any
time. Any authorized use of the foregoing shall comply with Articulate's then-
current trademark usage and branding guidelines;
2.6.13 Fail to comply with the following requirements of the multi-user Services
commonly referred to as "Articulate 360 Teams" (or such other product or service
name that Articulate may designate from time to time, for such purposes, "Articulate
360 Teams"). The Articulate 360 Teams administrator(s), whom Customer appoints,
may assign seats pursuant to the applicable Documentation. If a User no longer
requires use of the Services, Customer's administrator may reassign such usage
rights to a new Articulate 360 Teams user, so long as (a) the maximum number of
Users for whom licenses have been purchased is not exceeded; (b) the transfers are
to support employee turnover or role changes where the User no longer requires
access to the Services; and (c) the number of total User transfers within an Articulate
360 Teams account in a 12-month term does not exceed 2x (two times) the number
of purchased Users for the applicable Subscription Term;
2.6.14 Access, attempt to access, or authorize others to access the Services by any
means other than the interface Articulate provides, or otherwise enable users or
others to access the Services in a manner that has not been expressly authorized by
Articulate, including sharing Account Information (except with an authorized account
administrator or using another person's account;
2.6.15 Upload or share, or otherwise generate through the Services any content that
is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar,
lewd, profane, invasive of another's privacy, violates anyone's Intellectual Property
Rights, hateful, harms, incites or encourages violence or hatred against minors,
individuals, or groups, including violating Articulate's Terms of Use;
2.6.16 Use the Services to provide material support or resources (or to conceal or
disguise the nature, location, source, or ownership of material support or resources)
to any organization(s) designated by the United States government as a foreign
terrorist organization pursuant to Section 219 of the Immigration and Nationality Act
or other laws and regulations concerning national security, defense or terrorism;
2.6.17 Introduce, transmit, re-transmit, or store materials or software code on or
through the Services that are (a) harmful to the Services or our software, firmware,
or related technology; or (b) in violation of any applicable laws or regulations,
including without limitation laws relating to infringement of Intellectual Property
Rights of others or in violation of any other third party rights;
2.6.18 Impersonate any person or entity, or falsely state or otherwise misrepresent
Customer's affiliation with a person, organization, or entity, engage in chain letters,
junk mails, pyramid schemes, spamming, or other unsolicited messages or use the
Service to send altered, deceptive, or false source-identifying information, including
"spoofing" or "phishing" nor disrupt, interfere with, or inhibit any other User from
using the Services;
2.6.19 Use any data mining or similar data gathering and extraction methods in
connection with the Services, for example, to create distribution or mailing lists,
place advertisements of any products or services in the Services or for purposes of
identifying or extracting training data associated with any Al Feature; and
2.6.20 Violate any applicable law.
2.7. Terms Applicable to Reviewers and Commenters. Any individual(s) whom
Customer selects to provide review and comment functions within the Articulate
Review feature need not be Articulate subscribers or customers for such purpose;
however, each such reviewer will need to provide their email address or sign in with
their Articulate Account Information, depending on the settings Customer chooses
for this feature. The Customer shall be responsible for such reviewers' acts and
omissions with regard to their activities in conjunction with Articulate Review
feature. Using Review 360 as a hosting solution is strictly prohibited and may result
in suspension or termination of Customer's access to the Services.
2.8. Updates; Cooperation. The Services may automatically download and install
updates from time to time from Articulate. These updates may take the form of bug
fixes, new features, or new versions. Customer agrees to receive and implement
such updates from Articulate as part of Customer's use of the Services, as applicable.
Customer agrees to cooperate with Articulate's reasonable requests concerning the
use of the Services (including any Optional Features). Articulate reserves the right to
modify the Services to comply with its current and future legal obligations and best
practices in the industry, such as restrictions or requirements around the use of Al
Features and Output.
2.9. Third-Party Services. The Customer agrees Third-Party Services are integrated
into the Services. Customer's access and use of such Third-Party Services shall be
provided under the respective terms and conditions of the Third-Party Services
provider. Articulate does not warrant or support such Third-Party Services. Articulate
cannot guarantee the continued availability of any Third-Party Services or any
associated features of such, and Articulate may stop providing the features of such
Third-Party Services without prior notice to the Customer if, for example, and
without limitation, the provider of a Third-Party Service ceases to make the Third-
Party Service available for interoperation with the corresponding Service features in
a manner acceptable to Articulate.
2.10 Notice to US Government End Users (if applicable). For US Government
procurements, (a) Technical Data is provided in accordance with FAR 12.211, and
Software is a "commercial" computer software as defined in FAR 12.212; and (b)
"commercial" software and documentation are also provided in accordance with
DFARS 227.7202, "Rights in Commercial Computer Software or Commercial
Computer Software Documentation," as applicable, and any successor regulations.
Any use, reproduction, release, performance, display, or disclosure of the Software
or documentation by the US Government must be in accordance with license rights
and restrictions described in these General Terms of Service. Notwithstanding the
foregoing, the Government agrees that this software qualifies as "commercial"
computer software within the meaning of the acquisition regulations applicable to
this procurement. These General Terms of Service shall pertain to the Government's
use and disclosure of the software and documentation and shall supersede any
conflicting contractual terms or conditions. If these General Terms of Service fail to
meet the Government's needs or are inconsistent with Federal law, the Government
agrees to cease use of the Services.
2.11 Responsibility for Systems. Each party shall retain sole responsibility for such
party's information technology infrastructure, including computers, servers,
software, databases, electronic systems (including database management systems),
and networks, whether operated directly by such party or through the use of Third-
Party Services.
2.12 Articulate Content. Customer may use the Articulate Content to develop
Customer's e-learning end product in the Services ("End Product"), including
embedding the Articulate Content into Customer's End Product and reproducing and
distributing Articulate Content if integrated with the Customer's End Product.
Subject to Customer's compliance with this Agreement, Articulate grants Customer a
worldwide license solely to use Articulate Content within Customer's End Product.
However, the Customer may not use or distribute the Articulate Content on a stand-
alone basis outside of the End Product. For clarification, no Customer has any
ownership rights in the Articulate Content.
2.13. Use of Account Information. Articulate may collect Account Information about
Customer's use of the Services and Users that (a) is provided to Articulate in
connection with the creation or administration of its account; or (b) is generated in
connection with its use of the Services. Articulate will process Account Information
that includes Personal Data in accordance with Articulate's Privacy Policy. Customer
acknowledges and agrees that the Services may require monitoring of Account
Information during the Subscription Term to reconcile the number of Users or usage
of the Services with Customer's then-current Subscription Term of the Services.
2.14. Other Services Types.
2.14.1 Beta Version. Articulate may designate the Services as a pre-release, preview,
or beta version ("Beta Version"). All information and features available through such
Beta Version is the confidential information of Articulate unless made publicly
available by Articulate for all website users. Beta Version does not represent the final
product and may contain bugs that may cause system or other failure and data loss.
Articulate may choose not to release the Beta Version commercially. Articulate may
terminate or suspend Customer's use of the Beta Services at any time, and Customer
must promptly cease using the Beta Version upon Articulate's request. Customers
may provide Articulate feedback relating to the Beta Version at any time, and
Articulate will own and may use and evaluate all feedback for its purposes.
ARTICULATE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE BETA
VERSION, INCLUDING ANY WARRANTY THAT THE BETA VERSION WILL BECOME
GENERALLY AVAILABLE. EXCEPT TO THE EXTENT PROHIBITED BYLAW, ARTICULATE
DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
2.14.2 Academic Version. If Articulate designates the Services as being for use by
educational users ("Academic Version"), then Customer shall only use the Academic
Version if Customer meets the eligibility requirements provided for by Articulate.
Articulate or its authorized resellers will determine if Customer meets the academic
requirements and retains the right to verify eligibility as a prerequisite for each
renewal Subscription Term of this Agreement.
2.15 Trial Rights. Trial rights are available under a one-time evaluation period, as
stated on the trial sign up form. Customer shall provide Articulate certain
information as indicated on the trial registration form. At the end of the trial period,
and unless the trial is converted to paid Services, the Services will automatically
terminate, and Articulate will delete any content uploaded to the storage provided
for as part of the trial. Trial periods may be extended at Articulate's sole discretion.
ARTICULATE RESERVES THE RIGHT TO REFUSE OR TERMINATE ANY ORGANIZATION'S
OR USER'S TRIAL AT ITS SOLE DISCRETION, AND IN SUCH EVENT, CUSTOMER HEREBY
AGREES TO FORFEIT ANY AND ALL RIGHTS TO ANY CONTENT CREATED DURING SUCH
TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL RIGHTS
ARE PROVIDED BY ARTICULATE WITHOUT WARRANTY OR INDEMNIFICATION.
2.16 Support Policy. Articulate will provide support consistent with our then-current
Articulate 360 Support Policy: https://articulate.com/support/360/policy
2.17 AS BETWEEN ARTICULATE AND CUSTOMER, CUSTOMER AGREES THAT IT IS
SOLELY CUSTOMER'S RESPONSIBILITY TO (A) INFORM ANY OF CUSTOMER'S USERS
OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT
MAY IMPACT THE USE OF CUSTOMER CONTENT AND THE PROCESSING OF PERSONAL
DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM USERS AND AS
REQUIRED TO USE THE CUSTOMER CONTENT THAT ARE NECESSARY FOR THE
LAWFUL USE FOR THE OPERATION OF THE SERVICES; (C) ENSURE THAT THE
TRANSFER AND PROCESSING OF PERSONAL DATA FOR THE SERVICES IS LAWFUL; (D)
ADAPT THE CUSTOMER'S END PRODUCT TO COMPLY WITH THE LAWS APPLICABLE
TO CUSTOMER; AND (E) RESPOND TO AND RESOLVE ANY DISPUTE WITH ANY OF ITS
USERS RELATING TO OR BASED ON CUSTOMER CONTENT, PERSONAL DATA, THE
SERVICES, OR CUSTOMER'S FAILURE TO FULFILL THESE OBLIGATIONS. ARTICULATE
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, TO THE CUSTOMER RELATING TO THE
SERVICES, WHICH ARE PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE"
BASIS. CUSTOMERS SHOULD NOT RELY ON THE SERVICES FOR ANY MEDICAL, LEGAL,
FINANCIAL, OR PROFESSIONAL ADVICE. ANY CONTENT REGARDING THOSE TOPICS IS
PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR
ADVICE FROM A QUALIFIED PROFESSIONAL. IF THE CUSTOMER IS UNSURE WHETHER
ITS
CONTENT VIOLATES A THIRD PARTY'S RIGHTS, PLEASE CONSULT WITH CUSTOMER'S
LEGAL REPRESENTATIVE.
2.18 Al Terms. This provision applies to Customers using any Al Features as part of
the Services. The Services include features powered by generative artificial
intelligence technologies ("Al Features") of Articulate and its licensors, including
Third Party Services. Through user prompts and inputs, Customers may create
various forms of output, including images, text, audio, or video (collectively,
"Output"). Customers may choose to opt out of using the Al Features. The Output
generated and returned by an Al Feature could be based on Customer Content
provided by Customer into the Services or by the application of any Al Feature by
Customer to content available within the Services. Articulate will not use any
Customer Content to train any Al Features. Customer owns the Customer Content
and is solely liable for its Customer Content, including its use of Output following
receipt from the Services. Articulate hereby waives and irrevocably quitclaims to
Customer any and all claims, of any nature whatsoever, that Articulate now has or
may hereafter have for infringement of any Intellectual Property Rights of Articulate
(if any) that are contained in the Output. Customer will ensure that its Customer
Content and its use of any Al Features will not (a) violate any applicable law (existing
as of the date hereof or thereafter); (b) violate the Agreement; or (c) infringe,
violate, or misappropriate any of Articulate's rights or the rights of any third party.
Due to the nature of the machine learning technologies associated with Al Features,
Output may not be unique across users, and the Al Feature may generate the same
or similar output for third parties; and Customer acknowledges that any rights of
Articulate in the same or similar Output may be assigned to multiple third parties.
Customer may use any Output created by any Al Features at the Customer's own
risk, subject to the Agreement. Customer agrees to conduct reasonable testing of the
Al Features and Output for Customer's specifically contemplated use cases prior to
(a) integrating such Al Features or Output into any End Product; (b) sharing Output
publicly; or (c) materially relying on such Al Features or Output in Customer's
business operations. If Customer is using the Output as part of its End Product or
otherwise distributing the Output to third parties (internally or externally) that are
unaware of the presence of such Output, Customer agrees to include a disclosure
that the End Product or other distributed content includes Output created by Al
Features. Articulate does not guarantee the accuracy of any Output and the
Customer agrees to thoroughly evaluate the accuracy and applicability of any Output
prior to distribution or reliance in its business or End Product commensurate with
the nature of such use.
3. Customer Content
3.1 Ownership. Customer retains all rights, choices, control, and ownership of
Customer Content. Articulate does not claim ownership rights to Customer's Content
and only requires a limited license to Customer's Content to provide the Services. For
clarification, Articulate and the Third-Party Services used to power the Services
retain all rights and ownership to the applicable Articulate Content.
3.2 Licenses to Customer Content to Operate the Services. Articulate requires a
limited license to Customer Content to operate and enable the Services. Customer
grants Articulate a non-exclusive, worldwide, royalty-free, sub-licensable, and
transferable (solely to Third-Party Services to support the Services) license to access,
use, reproduce, distribute, and translate Customer Content for Articulate to solely
provide the Services. For clarification, this license is granted solely for the purposes
of (a) providing, operating, or improving the Services; (b) responding to support
requests; and (c) detecting, preventing, or otherwise addressing fraud, security,
unlawful, or technical issues and violations of the Agreement.
3.3 Termination of License. Customer may revoke Articulate's limited license to
Customer Content and terminate Articulate's rights at any time by terminating
Customer's access to the Services. However, some copies of Customer Content may
be retained as part of Articulate's routine backups, which will be protected as
required under this Agreement until overwritten on a regularly scheduled basis.
3.4 Feedback. Customers have no obligation to provide Articulate with ideas,
suggestions, or proposals ("Feedback"). However, if a Customer submits Feedback,
Customer grants to Articulate a non-exclusive, worldwide, royalty-free license, for
the legal duration of protection of rights that is sub-licensable and transferable, to
make, use, sell, have made, offer to sell, import, reproduce, publicly display,
distribute, and modify the Feedback; provided, however, that all Feedback is
provided as-is, and the Customer will have no liability to Articulate or to any third
party for any use of the information nor be identified as the source of such
information.
4. Fees and Payment
4.1 General. Customer and its Affiliates may subscribe to Services by executing an
Order Form, purchasing online directly, or through an Articulate-authorized reseller.
Articulates grants access to the Services pursuant to subscriptions. Subscriptions will
be for the Subscription Term agreed to in the applicable Order Form. Unless
otherwise provided for in an Order Form, Customer's Services shall automatically
renew with the same number of Users in the previous Order Form unless either Party
notifies the other in writing of its intent not to renew the applicable Order Form or
decrease the number of Users at least thirty (30) days before the end of the then-
current Subscription Term. Customer agrees to pay all Subscription Fees associated
with its access to the Services in advance in U.S. dollars, regardless of usage, to
Articulate or the Articulate-authorized reseller. Unless Customer has purchased
through an Articulate-authorized reseller, the Subscription Fees will be Articulate's
standard, then-current charges for the applicable Services. Unless preapproved by
Articulate to pay via an invoice, all Subscription Fees must be prepaid via a credit
card the Customer preregisters or otherwise provides to Articulate, and Customer
shall keep such information current. If Customer does not notify Articulate of
updates to Customer's payment method, to avoid interruption to the Service,
Articulate may participate in programs supported by Customer's card provider to try
to update Customer's payment information, and Customer authorizes Articulate to
continue billing for the Services with the updated information Articulate obtains. All
payments made via a preapproved invoice are due within thirty (30) days following
the date listed on the Articulate invoice. Any amount not paid when due is subject to
interest at a rate that is greater than (a) one percent (1%) per month; or (b) the
highest interest rate permissible under applicable law. Articulate shall not be liable
for Customer's use of the Services if the Customer has paid for or has been provided
access to the Services via an unauthorized reseller or through a third-party
marketplace.
4.2 Taxes and Third-Party Fees. Unless otherwise stated in writing, the Subscription
Fees do not include any applicable taxes, levies, duties, or other similar government
assessments of any nature, including but not limited to value-added sales and use or
withholding taxes assessable by any local, state, provincial, federal or foreign
jurisdiction (collectively "Taxes''). Customer shall be responsible for timely paying all
applicable Taxes associated with this Agreement except for Taxes based on
Articulate's net income, property, or personnel. If Articulate has the legal obligation
to pay or collect Taxes that Customer is responsible for, Articulate will tax based on
the address included in this Agreement or, if not included in this Agreement, the
organizational address provided to Articulate at the time Customer signs up for
Services. Customer shall pay the appropriate Tax amount unless Customer provides
Articulate with a valid tax exemption certificate authorized by the appropriate taxing
authority at the time of purchase.
4.3 Upgrades to Plans and Additional Commercial Terms for Articulate 360
Teams. Additional Users may be added to an Articulate 360 Teams Subscription at
any time, at the then-current rates at purchase, and prorated based on the number
of calendar days remaining in the Subscription Term. All Articulate 360 Teams
Subscriptions under a specific plan will have the same scheduled Subscription Term
end date, subject to renewal as set forth herein. Further, upon renewal, Articulate or
the Articulate-authorized reseller will charge the Customer for the total number of
Users at the time of such renewal.
4.4 Optional Features, Upgrades, and Exceeding User Limits. The number of Users
purchased for an Optional Feature applies to the Subscription Term specified in the
applicable Order Form. There are no credits or refunds for any Optional Feature
Users not utilized during the Customer's Subscription Term. Customer will be
charged at the rates made available at the time of purchase for (a) all Users added
during Customer's Subscription Term; and (b) all Users exceeding the limits
permitted in the applicable Order Form. Articulate may suspend access to Optional
Features for Users exceeding the limits permitted in the Services, or an applicable
Order Form, for non-payment or delinquent payment. Upon renewal, the Customer
will be charged for the total number of Users added during the Customer's previous
Subscription Term.
5. Mutual Representations and Warranties
Each party represents and warrants (a) it is duly organized, validly existing, and in
good standing 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) that upon use and purchase of the
Services, this Agreement will constitute the legal, valid, and binding obligation of
each party, enforceable against the other party, in accordance with the terms of this
Agreement.
6. Customer's Warranty and Indemnification Obligations
6.1 Warranty. Customer represents and warrants it (a) has all necessary licenses and
permissions to use and share Customer Content; (b) has the necessary rights and
licenses needed from Users to use the Services and to grant the licenses required in
this Agreement; and (c) it will comply with all applicable laws.
6.2 Indemnification. Customer will indemnify, defend, and hold Articulate and its
subsidiaries, affiliates, officers, agents, employees, partners, authorized resellers as
applicable, and licensors harmless from any third-party claim, demand, loss, or
damages, including reasonable attorneys' fees, arising out of or related to (a)
Customer's use of the Service in a manner that infringes the Intellectual Property
Rights of any third party; (b) any claim relating to Customer Content or Account
Information; (c) any Excluded Claims; (d) Customer's violation of Section 2.6
Restrictions of this Agreement; and, if applicable (e) Customer's use of any Al
Features, including any claim resulting from Customer's use of Output (in Customer's
End Product or otherwise).
7. Articulate's Warranty and Indemnification Obligations
7.1. During the term of this Agreement, Articulate warrants that the Services will
conform to and operate substantially in accordance with the descriptions provided in
the Documentation. Customer's sole and exclusive remedy and Articulate's sole and
exclusive liability for breach of this warranty shall be the prompt repair or
replacement of the Services. EXCEPT AS PROVIDED IN THE FOREGOING LIMITED
WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARTICULATE AND
THE APPLICABLE THIRD-PARTY SERVICES DISCLAIM ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT OF THIRD-PARTY RIGHTS. ARTICULATE MAKES NO COMMITMENTS
ABOUT THE CONTENT WITHIN THE SERVICES, THE OPERATION OF THE Al FEATURE,
OR THE INFORMATION, IMAGES, VIDEO, TEXT, OR CONTENT INCLUDED IN ANY
OUTPUT NOR THE USE OF ANY INPUT, INCLUDING, WITHOUT LIMITATION, THE
ACCURACY OF THE RESULTS, AVAILABILITY, SUITABILITY, RELIABILITY, OR CONTENT
OF ANY INFORMATION PROVIDED THROUGH ANY OPTIONAL FEATURES. TO THE
EXTENT PERMITTED BY LAW, ARTICULATE FURTHER DISCLAIMS ANY WARRANTY
THAT (A) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR WILL BE
CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, OR ERROR-FREE; OR (B) THE
QUALITY OF THE SERVICES WILL MEET CUSTOMER'S EXPECTATIONS.
7.2. Indemnification by Articulate. If a third party initiates a claim against Customer
claiming the Services, as used in accordance with this Agreement, directly infringe
such third party's Intellectual Property, Articulate will pay the costs and damages a
court having final jurisdiction awards against Customer in the lawsuit or the written
settlement of the lawsuit, to the extent that the costs and damages directly relate to
the claim. Articulate obligations under this Section 7.2 will not be subject to the
limitation of liability in Section 8.2 below. Articulate's obligations under this Section
apply only if Customer (a) promptly notifies Articulate of the lawsuit in writing; (b)
allows Articulate to control the defense of the lawsuit and any related settlement
negotiations; and (c) upon request, cooperates with and assist Articulate in the
defense or settlement of the lawsuit. Also, Articulate's obligations under this Section
do not apply to the extent the infringement claim arises out of (a) Customer's breach
of the Agreement or use of the Services outside the scope of the Agreement; (b)
Customer's continued use of the allegedly infringing portion of the Services after
being notified thereof or being provided, at no additional charge, modifications that
would have avoided the alleged infringement without materially reducing the overall
functionality of the Service; (c) any use of the Services in combination with other
products, equipment, services, data, processes, or software not recommended or
provided by Articulate, where the alleged infringement would not have occurred in
the absence of such use; (d) any use of any release of the Services other than the
most current release made available to the Customer; (e) Customer's use of the
Services in violation of applicable law; (f) Customer's failure to use the Services in
accordance with the Documentation; (g) any modification of the Services not made
or authorized in writing by Articulate, where the alleged infringement would not
have occurred in the absence of such modification; (h) Customer's use of the
Services where there has been no charges or fees, including where Customer is using
Beta Services; (i) Customer's use of Third-Party Services; or if applicable, (j)
Customer's or any downstream user's use of Output from Al Features ("Excluded
Claims"). Neither party may settle a claim that results in liability or admission of
liability by the indemnified party without the indemnified party's written consent. To
the maximum extent permitted by law, this Section states Articulate's entire liability
and Customer's sole and exclusive remedy for infringement claims and actions
against Customer.
7.3 Articulate's Options for Infringement Claims. If any party is enjoined from using
the Services, or if Articulate believes the Services may become the subject of a claim
of Intellectual Property infringement, Articulate may, at its option and expense (a)
contest the claim; (b) procure the right for Customer to continue to use the Services;
(c) replace or modify the Services to make it non-infringing; provided that such
substitute does not entail a material reduction in the overall functionality of the
Service; or (d) terminate this Agreement, in which case Articulate shall issue
Customer a pro-rata refund of Subscription Fees paid in advance by Customer for
those Services not provided. Articulate's exercise of any of the foregoing options
constitutes Articulate's entire liability and Customer's sole and exclusive remedy for
infringement claims arising from Customer's use of the Services.
8. Limitation of Liability
8.1. NEITHER PARTY NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES,
CONTRACTORS, OR EMPLOYEES IS LIABLE TO THE OTHER PARTY OR ANYONE ELSE
FOR: (A) ANY LOSS OF USE, GOODWILL, OR PROFITS, WHETHER OR NOT
FORESEEABLE; AND (B) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR
PUNITIVE DAMAGES WHATSOEVER (EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE: (A) RESULTING FROM LOSS OF
USE, OR PROFITS, WHETHER OR NOT FORESEEABLE; (B) BASED ON ANY THEORY OF
LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR
OTHER TORTIOUS ACTION; OR (C) ARISING FROM ANY OTHER CLAIM ARISING OUT
OF OR IN CONNECTION WITH CUSTOMER'S USE OF OR ACCESS TO THE SERVICES.
NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES EITHER PARTY'S LIABILITY FOR
CLAIMS RELATING TO DAMAGE TO TANGIBLE PROPERTY AND INJURY OR DEATH TO
PERSONS.
8.2. ARTICULATE'S TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO
THIS AGREEMENT IS LIMITED TO THE AGGREGATE AMOUNT PAID OR PAYABLE
UNDER THE SPECIFIC ORDER FORM GIVING RISE TO THE LIABILITY, PRORATED FOR
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE
TO THE LIABILITY. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. EACH
PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE
RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED
IN THE PRICING OFFERED BY ARTICULATE OR THE ARTICULATE-AUTHORIZED
RESELLER TO THE CUSTOMER, AND IT IS AN ESSENTIAL ELEMENT OF THE BASIS OF
THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE
AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THIS
LIMITATION WILL APPLY EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE
POSSIBILITY OF THE LIABILITY EXCEEDING THE AMOUNT AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.3 SUBJECT TO AND WITHOUT LIMITING ARTICULATE'S EXPRESS OBLIGATIONS
OUTLINED IN THIS AGREEMENT, (A) ARTICULATE SPECIFICALLY DISCLAIMS ANY
LIABILITY FOR ANY ACTIONS RESULTING FROM CUSTOMER'S NEGLIGENT USE OF ANY
SERVICES OR VIOLATION OF THIS AGREEMENT; (B) CUSTOMER MAY USE AND ACCESS
THE SERVICES AT CUSTOMER'S DISCRETION AND RISK; AND (C) CUSTOMER IS SOLELY
RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE USE AND ACCESS OF ANY SERVICES. ARTICULATE HAS NO
CONTROL OVER CUSTOMER CONTENT UPLOADED INTO THE SERVICES, AND THE
CUSTOMER SHOULD NOT USE OR PROVIDE ANY INFORMATION THAT IS SENSITIVE,
INCLUDING SENSITIVE DATA.
8.4 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 8 APPLY TO THE MAXIMUM
EXTENT PERMITTED BY LAW. EACH PARTY WILL USE REASONABLE EFFORTS TO
MITIGATE ANY DAMAGES UNDER THIS AGREEMENT OR LOSSES IN RESPECT OF
WHICH IT CLAIMS INDEMNIFICATION UNDER THIS AGREEMENT. IN THE EVENT ANY
CUSTOMER AFFILIATE PURCHASES UNDER THIS AGREEMENT, THE CUSTOMER LISTED
HEREIN SHALL BE JOINTLY AND SEVERALLY LIABLE FOR SUCH AFFILIATE.
9. Confidential Information
9.1. Except as expressly provided in the Agreement, the Receiving Party shall not
disclose Disclosing Party's Confidential Information to any third party (other than to
its personnel who have a need to know and who are subject to binding written
confidentiality obligations at least as protective as those set forth herein) without
Disclosing Party's prior written consent. Disclosing Party's Confidential Information
may be used by the Receiving Party solely for the purposes of performing its
obligations under the Agreement. Receiving Party shall take all reasonable measures
to avoid disclosure, dissemination, or unauthorized use of Disclosing Party's
Confidential Information, including, at a minimum, those measures taken to protect
its own Confidential Information of a similar nature, but in no event less than a
reasonable degree of care.
9.2. Confidential Information shall not include any information to the extent that
(a) is or becomes publicly available through no fault of Receiving Party; (b) is
independently developed by Receiving Party without utilizing Disclosing Party's
Confidential Information as evidenced with reasonable documentation upon
Disclosing Party's request; (c) is approved in writing by Disclosing Party for release by
Receiving Party; or (d) is disclosed without restriction to Receiving Party in good faith
by a third party who is in lawful possession thereof and who has the right to make
such disclosure as evidenced with reasonable documentation upon Disclosing Party's
request.
9.3. If the Receiving Party is compelled by court order or law ("Legal Order") to
disclose the Disclosing Party's Confidential Information, the Receiving Party unless
prohibited by law, shall promptly notify the Disclosing Party of such fact, provide a
copy of the Legal Order and reasonably cooperate, at Disclosing Party's request and
expense, in (a) opposing the Legal Order or seeking to limit the disclosure to the
minimum extent necessary to comply with the Legal Order; (b) seeking a protective
order; or (c) appealing the Legal Order. Failing any of the above, the Receiving Party
shall disclose only such Disclosing Party Confidential Information to the minimum
extent required to comply with the Legal Order. The Receiving Party shall continue to
be bound under this Agreement with respect to the Disclosing Party's Confidential
Information disclosed under the Legal Order unless the Disclosing Party's
Confidential Information becomes a matter of public record in connection with the
legal process.
10. Term; Termination
10.1. Term. The term of this Agreement and any Order Form executed under it will
commence in accordance with the applicable Order Form and will continue so long
as Customer maintains an active subscription to the Services unless Customer or
Articulate gives the other thirty (30) days notice of an intent to terminate or not
renew Customer's subscription to the Services.
10.2. Termination by Customer for No Reason/Termination for Convenience. While
the Customer may stop using the Services at any time, termination of Customer's
access to the Services, a specific Order Form, or this Agreement for no reason or
convenience does not relieve Customer of any obligation to pay any outstanding fees
or require Articulate or an Articulate-authorized reseller to refund any prepaid fees
unless otherwise expressly outlined in this Agreement.
10.3. Termination by Customer for Cause. Customer may terminate for cause this
Agreement or the applicable Order Form for Articulate's material breach of this
Agreement, so long as Customer gives Articulate prior written notice and affords
Articulate not less than thirty (30) days after receiving notice thereof to cure such
breach. If after such cure period, the breach is not resolved, Customer will receive a
prorated refund of Customer's prepaid fees for the remainder of the Subscription
Term, so long as Customer provides a written request to Articulate Customer
Support or the applicable Articulate-authorized reseller within thirty (30) days of the
effective termination date.
11. Termination by Articulate
Articulate may terminate the Services, this Agreement, or the applicable Order Form
for cause after giving Customer notice:
11.1. If Customer breaches any provision of this Agreement;
11.2. For non-payment or delinquent payment of the Subscription Fees for the
Services;
11.3 If Customer ceases to function as a going concern or to conduct operations in
the normal course of business or Customer has a petition filed by or against it under
any bankruptcy or insolvency laws for which the petition has not been dismissed or
set aside within sixty (60) days of filing; or
11.4 Articulate elects to discontinue the Services, in whole or in part, (such as, if it
becomes impractical for Articulate to continue offering Services in Customer's region
due to change of law).
12. Effect of Termination
Termination of this Agreement will automatically terminate all active Order Forms,
but termination of a single Order Form will not terminate this Agreement or any
other Order Forms. Upon the termination of this Agreement or a specific Order
Form, all rights and licenses granted by Articulate to Customer under this Agreement
or the applicable Order Form will terminate. Other than as provided in Section 10.3,
no refunds or credits for subscription charges, fees, or other payments will be
provided to Customer if Customer (a) elects to terminate access to the Services
before the end of the then-effective Subscription Term; (b) cancels, downgrades, or
reduces use of the Services, scope of license, access, or other rights during the
Subscription Term; or (c) if Articulate terminates or cancels Customer's account due
to Customer's breach of this Agreement or otherwise as provided in Section
10. Additionally, in these cases, Customer must immediately pay any amounts then
due to Articulate, including unpaid fees and charges associated with the remainder
of the Subscription Term. Following the termination or cancellation of Customer's
access to the Services, Articulate retains Customer Content for up to six (6) months
pursuant to its record retention policy. After six (6) months, Articulate permanently
deletes Customer Content from Articulate's servers and cannot restore it. Upon
request, Articulate can delete Customer Content as sooner, in which case it will not
be retrievable. Either party's termination of this Agreement is without prejudice to
any other remedies it may have at law or in equity and does not relieve either party
of liability for breaches occurring prior to the effective termination date. Neither
party will be liable to the other for damages arising solely as a result of terminating
this Agreement in accordance with its terms.
13. Investigations
13.1 Screening. Articulate is not obligated to monitor Customer Content uploaded to
the Services.
13.2 Disclosure. Articulate may access or disclose information about Customer or
Customer's use of the Services: (a) when it is required by law (such as when
Articulate receives a valid subpoena or search warrant); and (b) to respond to
Customer's requests for customer service support.
14. Export Control Laws
The Services and Customer's use thereof may be subject to US and international
laws, restrictions, and regulations that may govern the import, export, and use of the
Services. Customer agrees to comply with all such laws, restrictions, and regulations
to the extent applicable.
15. Dispute Resolution
15.1 Process. For any concern or dispute Customer may have, including for issues
under this Agreement, Customer agrees first to try to resolve the dispute informally
by contacting Articulate. If a dispute is not resolved within thirty (30) days of
submission, then except as otherwise outlined in Section 16.8, the Customer or
Articulate may initiate a claim in the state or federal courts in New York County, New
York, USA. However, either party may initiate a claim before the expiration of such
thirty (30) day period if the claim relates to intellectual property or to preserve either
party's rights under applicable statutes of limitations. THE UNIFORM COMPUTER
INFORMATION TRANSACTIONS ACT ("UCITA") OR ANY VERSION THEREOF
ADOPTED BY ANY STATE IN ANY FORM WILL NOT APPLY TO THIS AGREEMENT. TO
THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES HEREBY AGREE TO OPT OUT
OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S)
CONTAINED THEREIN.
15.2 Injunctive Relief. Notwithstanding the foregoing, in the event of any
unauthorized access to or use of the Services or content in violation of this
Agreement, Customer agrees Articulate is entitled to apply for injunctive remedies
(or an equivalent type of urgent legal relief) in any jurisdiction.
16. Miscellaneous
16.1 Interpretation. The English version of this Agreement will be used when
interpreting or construing this Agreement. Section headings are provided for
convenience only and will not affect the interpretation of this Agreement. Any words
following the terms "including," "in particular," "for example," "such as," or any
similar expression shall be construed as illustrative and shall not limit the sense of
the words, description, definition, phrase, or term preceding those terms.
16.2 Notice to Articulate. All notices to Articulate must be in writing and in English
and will be deemed given only when sent by certified mail (return receipt requested)
or by documented overnight delivery service to the party to whom the notice is
directed. All legal notices to Articulate shall be sent to the following address:
Articulate Global, LLC
Attn: Legal
244 5th Avenue — Suite 2960
New York, NY 10001, USA
AND email a copy to legal@articulate.com
16.3 Notice to Customer. To the extent permitted under applicable law, Articulate
may notify Customer by email, postal mail, postings within the Services, or other
legally acceptable means. Notices of updates to the Services, license terms, terms of
use, privacy terms, or other terms related to Articulate or the Services may be
delivered by Articulate posting such updates on its website or through in-product
messages. Unless otherwise noted therein, all changes are effective immediately and
apply to all access and use of the Service thereafter. Customer's continued use of the
Services constitutes acceptance to the updates, including the amended or updated
Terms of Service.
16.4 Entire Agreement; Precedence. This Agreement constitutes the entire
agreement between Articulate and Customer regarding the Services and the subject
matter hereof, and this Agreement supersedes any prior agreements or
understandings (whether written or oral) between Articulate and Customer relating
to the subject matter hereof. Articulate may receive and sign or otherwise execute
purchase orders, invoices, statements of works, quotes, orders, order confirmations,
or similar documents from Customer contemporaneously with or after the Effective
Date of this Agreement (including documents provided in connection with accepting
renewal of this Agreement); however, the parties agree that the signing up,
processing, acceptance, or execution by Articulate does not constitute an acceptance
of any of Customer's or any third-party's documents, policies, or terms or conditions.
Such documents, policies, and terms and conditions, including any additional,
contrary, or different terms contained therein, and any other attempt to modify,
supplement, supersede, or alter this Agreement are deemed rejected by
Articulate. Customer further represents and warrants (a) this Agreement shall
control; (b) such documents are solely for compliance with Customer's internal
purchasing policies; (c) such documents are not intended to and shall not add any
new terms or conditions, or supersede any conflicting terms and conditions in this
Agreement; and (d) Customer shall not assert any terms or conditions contained in
such documents against Articulate. No amendment to, modification of, or rescission,
termination, or discharge of this Agreement is effective unless it is in writing and
signed by an authorized representative of each party.
16.5 Assignment. Neither party may assign or otherwise transfer this Agreement or
its rights and obligations under this Agreement, in whole or in part, without the prior
written consent of the other party, which shall not be unreasonably withheld, and
any such attempt will be void. Notwithstanding the above, either party may assign
this Agreement, without the other party's consent, to its parent company or any
purchaser of all or substantially all of such party's assets or any successor by way of
merger, consolidation, or similar transaction. If Customer is purchasing through a
reseller, distributor, or similar third party, Customer acknowledges and agrees that
Articulate reserves the right, upon notice, to require such third party to assign the
relationship directly to Articulate (or to another third party that Articulate may
specify), and in such event, Customer agrees to comply and cooperate with such
transfer fully and to do all things reasonably necessary to affect the same.
16.6 Severability. If at any time any provision of this Agreement is or becomes illegal,
invalid, or unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity, or enforceability of the remaining provisions hereof nor the legality,
validity, or enforceability of such provision under the law of any other jurisdiction
will in any way be affected or impaired thereby, and the remainder of the provisions
of this Agreement will remain in full force and effect. Articulate and Customer agree
to endeavor in good faith negotiations to replace any illegal, invalid, or
unenforceable provision with a valid, legal, and enforceable provision, the economic
effect of which comes as close as possible to the illegal, invalid, or unenforceable
provision.
16.7 No Waiver. Neither party's failure to enforce or exercise any provision outlined
in this Agreement is a waiver of that provision.
16.8 DMCA. Articulate respects the Intellectual Property Rights of others, and
Articulate expects all Users to do the same. Articulate will respond to clear notices of
copyright infringement consistent with the Digital Millennium Copyright Act
("DMCA").
16.9 Choice of Law. This Agreement is governed by the laws of New York, U.S.A.,
without regard to the conflict of law provisions thereof.
16.10 Eligibility. A customer may only use the Services if (a) over 18 years old; and
(b) allowed by law to enter into a binding contract.
16.11 Availability. Services descriptions may be accessible worldwide, but for clarity,
this does not mean all Services or service features are accessible in all languages or
all areas or that user-generated content available via the Services is legally compliant
in all areas. Customer represents and warrants its use of the Services complies with
applicable laws.
16.12 Force Majeure. Except for the obligation to make payments, neither party will
be liable for any failure or delay in its performance under this Agreement due to any
cause beyond its reasonable control, including acts of war, terrorism, acts of God,
epidemic, pandemic, earthquake, flood, embargo, riot, sabotage, labor shortage or
dispute, governmental act or complete or partial failure of the Internet, provided
that the delayed party (a) gives the other party prompt notice of such cause; and (b)
uses its reasonable commercial efforts to correct such failure or delay in
performance promptly.
16.13 Survival. Upon expiration or termination of this Agreement, the following
Sections will survive: 2.3 (License/Use Rights), 2.5 (Responsible Use), 2.6
(Restrictions), 2.7 (Terms Applicable to Reviewers and Commenters), 2.9 (Third-Party
Services), 2.10 (Notice to US Government End Users), 3 (Customer Content), 4 (Fees
and Payment), 5 (Mutual Representations and Warranties), 6 (Customer's Warranty
and Indemnification Obligations), 7 (Articulate's Warranty and Indemnification
Obligations), 8 (Limitation of Liability), 9 (Confidential Information), 10 (Term;
Termination), 12 (Effect of Termination), 13 (Investigations), 14 (Export Control
Laws), 15 (Dispute Resolution), 16 (Miscellaneous), and the Data Processing
Agreement, incorporated by reference herein if applicable. Upon the expiration or
termination of the Services, the Services may cease to operate without prior notice.
17. Jurisdiction-Specific Terms (if applicable)
This Section applies to specific jurisdictions. If there is any conflict between this
Section and other Sections, then this Section governs in relation to the relevant
jurisdiction:
17.1 Australia:
17.1.1 NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT CUSTOMER'S NON-
EXCLUDABLE RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH).
17.1.2 DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, IF THE COMPETITION
AND CONSUMER ACT 2010 (CTH) OR ANY OTHER LEGISLATION STATES THAT THERE
IS A GUARANTEE IN RELATION TO THE SERVICES SUPPLIED BY ARTICULATE
REGARDING THIS AGREEMENT, AND ARTICULATE'S LIABILITY FOR FAILING TO
COMPLY WITH THAT GUARANTEE CANNOT BE EXCLUDED BUT MAY BE LIMITED,
SECTIONS 7.1, 7.2 AND 7.3 DO NOT APPLY TO THAT LIABILITY. INSTEAD,
ARTICULATE'S LIABILITY FOR THAT FAILURE IS LIMITED TO (AT THE ELECTION OF
ARTICULATE), IN THE CASE OF A SUPPLY OF GOODS, ARTICULATE REPLACING THE
GOODS OR SUPPLYING EQUIVALENT GOODS OR REPAIRING THE GOODS, OR IN THE
CASE OF A SUPPLY OF SERVICES, ARTICULATE SUPPLYING THE SERVICES AGAIN OR
PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
17.1.3 If, for any reason, the provision of the Services under or in connection with
this Agreement constitutes a "Taxable Supply" in Australia, in compliance with the
Australian Goods and Services Tax (GST) regulations, this Terms of Service contract
delineates the application of GST exclusively to transactions involving non-GST
registered customers within Australia. At or before the time the Subscription Fees
are payable, Customer must pay Articulate or the applicable Articulate-authorized
reseller an amount equal to the GST or similar tax or withholding for the Services (in
addition to the fees otherwise payable for the Services), and Articulate will give
Customer a Tax Invoice (or similar receipt or acknowledgment) for the Service. All
prices quoted under this Agreement are exclusive of GST, and non-GST registered
customers in Australia will be subject to the addition of GST at the prevailing rate
applicable in the country. For the purpose of this Section, GST means the goods and
service tax under the Good and Services Tax Act 1999 (Cth), and capitalized terms
have the meaning given in that Act. For customers possessing an Australian Business
Number (ABN) and duly registered for Goods and Services Tax (GST), it is
acknowledged that Articulate will not be responsible for GST, and all prices quoted
under this Agreement are exclusive of GST. In accordance with this provision, GST-
registered customers are required to self-assess and account for the applicable GST
on the specified goods and services acquired under this Agreement. The reverse
charge mechanism places the responsibility for remitting the GST directly on the
recipient of the taxable supply, thereby ensuring compliance with GST regulations.
17.2 Consumers Outside the United States.
17.2.1 THE FOLLOWING SECTION DOES NOT APPLY TO PURCHASERS IN THE US: THIS
AGREEMENT AND THE SERVICES ARE OFFERED ONLY TO PERSONS WHO ARE NOT
CONSUMERS UNDER ANY APPLICABLE LAW. IF CUSTOMER IS A CONSUMER,
CUSTOMER IS NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT AND MUST
FOLLOW THE RETURN PROCEDURE SET FORTH BELOW. IN PARTICULAR, IF THE
CUSTOMER RESIDES WITHIN THE EUROPEAN UNION, THE CUSTOMER IS A
CONSUMER IF THEY ARE A NATURAL PERSON PURPORTING TO ENTER INTO THIS
AGREEMENT FOR ANY PURPOSE OUTSIDE CUSTOMER'S TRADE, BUSINESS, CRAFT, OR
PROFESSION. IF THE CUSTOMER IS NOT AUTHORIZED TO ENTER INTO THIS
AGREEMENT, OR IF CUSTOMER DOES NOT AGREE TO ALL OF THESE TERMS AND
CONDITIONS, THEN CUSTOMER MUST NOT INSTALL, ACCESS, COPY, OR USE THE
SERVICES, AND CUSTOMER MUST, WITHIN THREE (3) DAYS, DELETE AND
PERMANENTLY ERASE FROM ALL COMPUTER MEMORY AND STORAGE MEDIA ALL
COPIES OF THE SERVICES AND RELATED SOFTWARE, AND TO OBTAIN A REFUND,
CUSTOMER MUST NOTIFY ARTICULATE IN WRITING COMPLIANCE OF THE
FOREGOING.
17.2.2 If Customer resides in Australia, New Zealand, Japan, mainland China, Hong
Kong SAR, Macau SAR, Taiwan ROC, the Republic of Korea, India, Sri Lanka,
Bangladesh, Nepal, or a member state of the Association of Southeast Asian Nations
(ASEAN), then the Singapore International Arbitration Centre (SIAC) will administer
the arbitration in Singapore under its Rules of Arbitration, which rules are deemed to
be incorporated by reference in this Section. Otherwise, the London Court of
International Arbitration (LCIA) will administer the arbitration in London under the
LCIA Arbitration Rules. There will be one arbitrator that both Customer and
Articulate select. The arbitration will be conducted in the English language, but any
witness whose native language is not English may give testimony in the witness'
native language, with simultaneous translation into English (at the expense of the
party presenting the witness). Judgment upon the award rendered may be entered
and enforceable in any court of competent jurisdiction having jurisdiction over the
parties.
FOR CUSTOMERS SUBJECT TO REGIONAL PRIVACY LAW(S), CLICK HERE TO REVIEW
OUR DATA PROCESSING AGREEMENT, WHICH, WHERE APPLICABLE, SHALL BE
INCORPORATED BY REFERENCE INTO THIS AGREEMENT AS EXHIBIT A.
1 To see how our General Terms of Service have changed, click here
MC TO SIGN Articulate 360 renewal
Final Audit Report 2024-12-20
Created: 2024-12-20
By: Ikhra Mohamed(imohamed@kentwa.gov)
Status: Signed
Transaction ID: CBJCHBCAABAA7fc7QMNr6alYnOmCiMt9ghvflAPXGmVw
WC TO SIGN—Articulate 360 renewal" History
Document created by Ikhra Mohamed (imohamed@kentwa.gov)
2024-12-20-10:13:17 PM GMT
Document emailed to Mike Carrington (mcarrington@kentwa.gov)for signature
2024-12-20-10:13:25 PM GMT
C, Document e-signed by Mike Carrington (mcarrington@kentwa.gov)
Signature Date:2024-12-20-10:44:00 PM GMT-Time Source:server
® Agreement completed.
2024-12-20-10:44:00 PM GMT
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