Last Modified: September 15, 2021
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Paradigm will provide Customer with access to its Blueprint web application and online assessment regarding diversity, equity and inclusion, in each case, as selected and paid for by Customer (collectively, “Services”). All Services will be provided through the Internet, solely for Customer’s internal use (and the internal use of Customer’s end-users). Customer’s access to the Services is expressly limited to the number of end-users for whom Customer has paid (as further described on Paradigm’s website or via the Services), and Customer agrees not to exceed such access and/or end-user account limits. The software underlying the Services will be hosted on a server under the control or direction of Paradigm. The Services are subject to modification from time to time at Paradigm’s sole discretion, for any purpose deemed appropriate by Paradigm. Subject to the terms and conditions of this Agreement, Paradigm hereby grants to Customer a worldwide, full paid-up, non-exclusive license to internally use for the sole benefit of Customer, any downloadable assessment reports and/or resources provided by Paradigm to Customer via Services (collectively, “Paradigm Materials”). Notwithstanding anything to the contrary herein, Customer will not disclose, or permit disclosure of, any Paradigm Materials to any third party without Paradigm’s prior written consent.
1.2 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Paradigm.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software provided by Paradigm, documentation or data output from the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); copy, record, modify, translate, or create derivative works based on the Services, software provided by Paradigm, or any data output from the Services; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; use the Services or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); except as expressly permitted by the functionalities of the Services, run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of Paradigm, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, malware, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
2.2 Customer will reasonably cooperate with Paradigm in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Paradigm may reasonably request, to assist in its provision of the Services. Customer will also cooperate with Paradigm in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Each end-user account and login credential provided by Paradigm with respect to the Services may only be used by one individual end-user of Customer, and may not be shared or transferred without Paradigm’s prior written consent in each instance. Each Customer end-user of the Services must (a) be a current employee, consultant, contractor or agent of Customer using the Services only on Customer’s behalf and for Customer’s direct benefit, and (b) be bound by obligations that are no less protective of the Services than the terms set forth in this Agreement. Customer will be directly responsible to Paradigm with respect to all actions and/or inactions of its end-users of the Services.
2.3 Customer hereby agrees to defend, indemnify and hold Paradigm harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties in connection with any claim or action that alleges any (i) infringement, violation or misappropriation of any intellectual property or proprietary right(s) by any Content (as defined below), including, without limitation, in connection with distribution and/or analysis thereof through the Services, and/or (ii) violation of applicable law(s) and/or regulations) by Customer (including, without limitation, employment, labor, and/or discrimination law(s) and/or regulation(s)); provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.
2.4 Paradigm hereby agrees to defend, indemnify and hold Customer harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties as a result of any claim or action that alleges the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party by the Services (excluding all Content); provided that Paradigm is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. The foregoing obligations do not apply with respect to portions or components of the Services provided by Paradigm (i) not created by or on behalf of Paradigm, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Paradigm, (iv) combined with other products, processes or materials where the alleged infringement arises out of such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, the Services are Paradigm’s Proprietary Information, and the Content provided by Customer is Customer’s Proprietary Information.
3.2 The Receiving Party agrees: (i) except as expressly provided herein, not to disclose to any third party any such Proprietary Information, (ii) not to use any such Proprietary Information for any purpose other than as expressly set forth pursuant to this Agreement, (iii) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the Disclosing Party’s Proprietary Information as this Agreement), and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was rightfully in its possession or known by it without restriction, prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, Paradigm may collect data with respect to, use such data to develop, implement, execute and/or improve the Services, and report on, the aggregate response rate and other aggregate measures of the Services’ performance and Customer’s usage of the Services (including without limitation, the Content); provided that Paradigm will not identify (or disclose any data that could reasonably be used to identify) Customer or any individual without the prior written consent of the Customer and/or the individual.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Paradigm alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services and related software and any suggestions, enhancement requests, feedback, and/or recommendations provided by Customer or any of its end-users specifically relating to the Services and/or the software provided by Paradigm, which are hereby assigned to Paradigm. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Except as expressly set forth herein, this Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or related software, or any intellectual property rights.
4.2 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all content and data provided by or on behalf of Customer and/or its end-users (“Content”) and the intellectual property rights with respect to that Content. If Paradigm receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party or any applicable law or regulation (a “Claim”), Paradigm may (but is not required to) suspend activity hereunder with respect to that Content. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Paradigm a worldwide, non-transferable, non-sublicensable, nonexclusive license to view, copy, reformat, distribute, display and analyze the Content solely in connection with Paradigm’s performance of the Services. Paradigm is permitted to disclose that Customer is one of its customers in the ordinary course of its sales cycle. Subject to Customer’s prior written consent, Paradigm is permitted to place Customer’s name and logo on its website and marketing materials for this purpose.
5. PAYMENT OF FEES
5.1 Customer shall pay all applicable fees, as described by Paradigm via its website or the Services, in connection with the specific Services selected by Customer (collectively, “Fees”) without any right of set-off or deduction. All payments will be made in accordance with the payment schedule and the method of payment set forth on Paradigm’s website or via the Services. All Fees paid hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Paradigm's net income) unless Customer has provided Paradigm with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Paradigm on account thereof.
6.1 Unless earlier terminated in accordance with this Section 6 or Section 7, this Agreement, including Customer’s subscription to the Services, shall continue for one (1) calendar year from the date of Customer’s acceptance of this Agreement (the “Initial Term”). After the Initial Term, this Agreement, including Customer’s subscription to the Services, will automatically renew for successive one-year periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless and until either party provides the other with at least thirty (30) days’ written notice of its intention not to renew prior to the end of the then-current Term.
6.2 Either party hereto may terminate this Agreement upon thirty (30) calendar days’ prior written notice in the event of any material breach of this Agreement by the other party hereto (including, without limitation, by Paradigm in the event of any breach by Customer of Section 2.2 and/or failure to pay any amounts when due hereunder) that is not cured during such notice period.
6.3 Either party may terminate this Agreement, with written notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.
6.4 Customer’s access to the Services, and any licenses granted hereunder to Customer, shall terminate upon any termination of this Agreement. Subject to the foregoing, the following Sections will survive any termination of this Agreement: 2.1, 2.3, 2.4, 3 through 6, 9 through 12, and any accrued rights to payment.
7. STATUTORY RIGHT OF WITHDRAWAL (EEA AND UK CONSUMERS ONLY)
7.1 If you are a consumer in the European Economic Area or the United Kingdom you have the right to withdraw from the contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day you entered into the subscription contract.
7.2 To exercise the right of withdrawal, you must inform us (Paradigm Strategy Inc., 300 Brannan St, Ste 610, San Francisco, CA 94107, email@example.com) of your decision to withdraw from the contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the model withdrawal form attached to this Agreement as Annex, but it is not obligatory.
7.3 To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
7.4 Effects of Withdrawal: If you withdrawal from the contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from the contract, in comparison with the full coverage of the contract.
8. GENERAL WARRANTIES
Each party represents and warrants to the other party that (a) it has the legal right and power to enter into this Agreement, (b) the performance of its obligations hereunder will not violate or conflict with any agreements, contracts or other arrangements to which it is a party, and (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained.
9. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, DOCUMENTATION, AND ANYTHING ELSE PROVIDED BY PARADIGM IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES. PARADIGM HEREBY DISCLAIMS ANY AND ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PARADIGM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. PARADIGM DOES NOT WARRANT THAT THE SERVICES, DATA PROVIDED, AND/OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO BREACH BY CUSTOMER OF SECTION 3, IN NO EVENT WILL EITHER PARTY HERETO OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
EXCEPT WITH RESPECT TO BREACH BY CUSTOMER OF SECTION 3, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WITH RESPECT TO THIS AGREEMENT, AND/OR ANY SERVICES PROVIDED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) FEES PAID TO PARADIGM HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED, OR (B) $10,000. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. U.S. GOVERNMENT MATTERS
Notwithstanding anything to the contrary, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Paradigm are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Paradigm’s prior written consent. Paradigm may transfer and/or assign this Agreement to a successor in connection with a sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties hereto, and supersedes and cancels all previous written and oral agreements, communications and other understandings between the parties hereto relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Paradigm will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.