1.1 “Agreement” means this ForgeRock Training Agreement.
1.2 “Customer” means, as applicable, (a) the entity that through its authorized representative has accepted the terms and conditions of this Agreement or (b) an individual that accepted the terms on their own behalf.
1.3 "Customer Data" means information submitted by, or entered by an Employee or automatically uploaded through the use of the Services including, but not limited to, account information, network information, user ids and usage details.
1.4 “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, but not limited to, the terms and conditions of this Agreement, and any information that relates to business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party.
1.5 “Documentation” means the standard written instructions or manuals, including any updates thereto, relating to the use of the Services as made generally available by ForgeRock.
1.6 "Employee" means an individual employee, contractor or agent of Customer that accesses the Services on behalf of Customer as permitted herein.
1.7 “Intellectual Property” means any intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.
1.8 “Services” means the access to online training courses or on premise training classes for which Customer is registering with ForgeRock and any related Documentation provided by ForgeRock with such training.
1.9 “System” includes the software and hardware used to provide the Services to Customer over the Internet or in the ForgeRock training delivery center, if applicable, including application software, web and/or other internet servers, any associated offline components, and all updates thereto.
2.1 License. ForgeRock grants to Customer a non-exclusive, non-transferable, non-sublicenseable right to have each Employee for whom Customer has registered receive the applicable training course and access the Documentation. Such registration shall not be transferable and the Documentation may not be redistributed unless authorized by ForgeRock in writing. Customer agrees that it shall be liable for each Employee’s compliance to the terms of this Agreement.
2.2 Restrictions. Customer will not, and will not allow any third party to: (a) modify, copy, or otherwise reproduce the Services, Documentation, or any information or materials provided in the provisioning of such Services, in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the delivery of the Services; (c) provide, lease or lend the Services to any third party except as expressly authorized hereunder; (d) remove any proprietary notices or labels displayed on the Documentation; (e) modify or create a derivative work of any part of the Services, Documentation or any materials provided in the provisioning of the Service; (f) use the Services or System for any unlawful purpose or (g) create public Internet "links" to or from the System, or "frame" or "mirror" any of ForgeRock's content which forms part of the Services.
3. Proprietary Rights
3.1 Ownership. As between ForgeRock and Customer, ForgeRock owns all rights, including Intellectual Property rights, in the Services, Documentation, System, and any materials relating thereto, and any modifications, enhancements, customizations, updates, revisions or derivative works thereof, and all results of consulting services, whether made pursuant to this Agreement or a separate statement of work. No transfer of ownership will occur under this Agreement. All rights not expressly granted to Customer are reserved by ForgeRock.
3.2 Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information provided to ForgeRock (“Feedback”). For any and all Feedback, Customer grants to ForgeRock a non-exclusive, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense any Feedback in its products and services. Customer represents that it holds all intellectual or proprietary rights necessary to grant to ForgeRock such license, and that the Feedback will not violate the personal, proprietary or intellectual property rights of any third party.
4. Confidentiality and Security
4.1 Confidential Information . Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the other party’s Confidential Information to any person or entity other than its officers, principals, employees and subcontractors who need access to such Confidential Information in order to effect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement.
4.2 Exceptions . The restrictions set forth in Section 5.1 will not apply to any Confidential Information that the Receiving Party can demonstrate: (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party; (e) has been approved for release by the Disclosing Party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
4.3 Injunctive Relief. The parties agree that a breach of Section 4.1 may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.
4.6 Passwords . As part of the registration process, Customer will select passwords for accounts. Customer is responsible for maintaining the confidentiality of passwords, and Customer agrees that ForgeRock has no liability with regard to the use of such passwords by third parties. Customer agrees to notify ForgeRock immediately if Customer has any reason to believe that the security of Customer’s account has been compromised.
5.1 Changes . ForgeRock reserves the right to modify or temporarily suspend use of the Services or portions thereof. ForgeRock may also temporarily restrict Customer’s access to parts of the Services for maintenance or system administration purposes without notice or liability.
6. Support and Services
6.1 Custom Training Services. Any consulting services, training or other requirements not expressly stated in this Agreement or in a separate statement of work signed by the parties are outside the scope of this Agreement and only will be provided for additional fees. In the event any work product or code is created in the provisioning of consulting services, ForgeRock shall retain all rights, title and license in such work product or code provided that it shall be licensed to Customer under the same terms as the Service. Fees for such items are payable as specified in the applicable statement of work and unless otherwise specified will be paid upon receipt of invoice. For the purposes of computing daily rates, ForgeRock’s standard workday is 8 hours. Changes in any statement of work will be effective only if a change request is signed by the parties.
7. Term and Termination
7.1 Term. This Agreement commences and continues through the provisioning of the any applicable Services. Unless superseded by a later executed agreement, this Agreement shall continue to apply to any subsequently purchased Services by Customer.
7.2 Termination for Cause. Either party may terminate the Agreement immediately upon notice of a breach to the other party or (b) either party ceases to do business as an operating concern or (c) becomes financially insolvent, makes an assignment for the benefit of creditors, files for bankruptcy dismissed within sixty (60) days following the filing. In addition, either may terminate this Agreement upon (10) days notice without cause.
7.3 Effect of Termination . Termination will not relieve Customer of the obligation to pay any fees due or payable to ForgeRock prior to the effective date of termination, including annual fees, implementation fees, training fees, license subscription fees, or any other fees or payments that Customer has committed to under the Agreement. All licenses granted hereunder shall immediately terminate and Customer shall return or destroy all Documentation and Confidential Information in its possession. Customer shall certify its compliance with these provisions no less than thirty (30) days from the date of termination. Sections 3, 7.4, 8, 9, 10 and 11 will survive any termination or expiration of the Agreement. Sections 4.1-4.3 will survive any termination of the Agreement.
7.4 Return of Materials. All Confidential Information, designs, drawings, formulas or other data, financial information, business plans, literature, and sales aids of every kind will remain the property of the Disclosing Party. No later than 30 days after termination, each party will prepare all such items in its possession for shipment to the other at the Disclosing Party's expense. The Receiving Party will not make or retain any copies of any confidential information.
7.5 Customer Data. In the event of any termination of this Agreement, ForgeRock shall have no obligation to retain or deliver the Customer Data to Customer.
8. WARRANTY DISCLAIMER
THE SERVICES, SYSTEM AND ANY RELATED DOCUMENTATION AS DESCRIBED IN THIS AGREEMENT ARE PROVIDED "AS IS". EXCEPT AS EXPRESSLY PROVIDED HEREIN, FORGEROCK DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, SYSTEM, AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.
9. Limitation of Liability
IN NO EVENT WILL FORGEROCK BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS PROHIBITED BY LAW, FORGEROCK’S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICES IN THE PRECEDING SIX MONTHS PRIOR TO THE CLAIM ARISING.
10. General Provisions
10.1 Governing Law; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of California, excluding its conflict of laws provisions. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Mateo County, California for any action arising hereunder.
10.2 Independent Contractors. The relationship of ForgeRock and Customer is that of independent contractors. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer-employee, or agents of each other.
10.3 Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (b) U.S. express mail, or national express courier with a tracking system, to the address specified in the applicable order form or, if no order form is used, to the email address of the registered contact. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.
10.4 Assignment. The Agreement may not be assigned by Customer by operation of law or otherwise, without the prior written consent of ForgeRock, which consent will not be unreasonably withheld.
10.5 Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either party to the other.
10.6 Compliance with Laws. Each party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering and/or using the Services, this includes without limitation export or re-export of the Services in compliance with all U.S. export laws (in no event shall the Services or System be exported to or accessed in Cuba, Iran, North Korea, Syria or Sudan).
10.7 Miscellaneous. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights. The Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The parties agree that facsimile signatures are valid signatures for enforcement of the Agreement.
10.8 Incorporation and Interpretation. The Agreement constitutes the entire agreement between ForgeRock and Customer with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter. No modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings. No term or condition contained in Customer’s purchase order or similar document will apply unless specifically agreed to by ForgeRock in writing, even if ForgeRock has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by ForgeRock.