This License Agreement (the “Agreement” ) by and between Northpass, Inc., a Delaware corporation, with its principal place of business at 6 Upper Pond Road, Parsippany, New Jersey 07054 ( “Northpass” ) and the customer identified on the covering order form (the “Order Form” ) signed by said customer (the “Customer” , together with Northpass, the “Parties” , and each a “Party” ), is entered into as of the date that the Customer signs the Order Form.
This Agreement sets forth the terms and conditions under which Northpass will license and maintain the Software (as defined below) to Customer, each Party’s responsibilities hereunder, and the fees related thereto. You can find archived versions of the terms here.
“Compensation” means the fees identified in the Order Form for the license to the Software during the Term of Use.
“Customer Content” means all content owned by, created by or supplied by or on behalf of Customer or its Users for use on and distribution through the Software.
“Services” means, collectively, all goods and services provided or made available to Customer by Northpass under this Agreement or any schedule hereto.
“Software Services” means the services provided by the Software.
“Software” means the online software teaching and education platform known as "Northpass," including all source code, object code, architecture, designs, functionality, content (excluding Customer Content), concepts, features, and documentation related thereto, as well as all updates and customizations to any of the foregoing.
“Users” means the end-users of Customer’s implementation of the Software.
“Term of Use” means that period of time commencing on the Effective Date and terminating on that date identified in the Order Form.
LICENSE. Subject to payment in full of the Compensation and compliance with this Agreement, Northpass grants to Customer during the Term of Use, and for the number of Users as specified in the Order Form, a non-transferable, non-exclusive license, without right to sublicense, to: (i) permit Users to access and use the end-user facing portions of Customer’s Software services account; and (ii) use the Software Services to provide Customer Content to Users and to administer and moderate their submissions and postings. The Software Services are the confidential and proprietary property of Northpass. Customer shall not use or copy the Software Services except as expressly permitted herein. Customer shall not adapt, modify, disassemble, decompile or reverse engineer the Software Services in whole or in part, or let any third party do so, except as provided herein. All rights not expressly granted herein are retained by Northpass. No right or license is granted or implied under any of Northpass’s patents, copyrights, trademarks, trade names, service marks or other intellectual property rights beyond the rights set forth in this Agreement.
Upgrades and Modifications. Customer agrees that Northpass may update, upgrade or modify the Software Services, at any time, including the removal or modification of previously available functionality; provided, however, that: (i) Customer receives reasonable advance notification of any material modifications to permit internal compliance evaluation and validations; and (ii) that any such updates, upgrades, enhancements and/or modifications shall not materially reduce the functionality of the Software. Subject to the foregoing, any updates, upgrades, enhancements and/or modifications provided to Customer by Northpass will automatically be considered part of the Software Services and will be subject to the terms of this Agreement.
Availability. Unless Customer has signed a separate Service Level Agreement with Northpass, Northpass will, subject to planned downtime, make reasonable efforts to ensure that the Software Services are generally available. However, Northpass does not guarantee, represent or warrant that access to the Software Services will be uninterrupted or error-free, and Northpass does not guarantee that Customer will be able to access or use all or any of the system features at all times. Northpass will make reasonable efforts to notify Customer of system outages and scheduled downtime.
Suspension. Northpass may suspend or interrupt the Services, in whole or in part, if (i) Northpass reasonably believes that Customer or Users are using or intend to use the Services in violation of this Agreement or in violation of the law, (ii) Northpass believes that Customer’s system has been compromised or unlawfully accessed, (iii) Northpass reasonably believes that suspension of the Services is necessary to protect the infrastructure of Northpass or its affiliates, or is necessary to protect Northpass’s other customers, (iv) suspension is required under the law, or (v) if Customer fails to pay the fees applicable under this Agreement when due, and provided that Customer has been notified of its failure to pay and given fifteen (15) days to remedy this failure.
RULES Impermissible Conduct. Customer and its Users may not distribute, upload, transmit, make available or otherwise publish through the Software any Customer Content that: (1) is unlawful or encourages another to engage in anything unlawful; (2) is misleading, false or fraudulent; (3) contains a virus or any other similar programs or software which may damage the operation of Northpass’s or another’s computer; (4) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (5) is libelous, defamatory, pornographic, obscene, invasive of privacy or publicity rights, abusing, inciting, harassing or threatening. Customer shall be responsible for the actions of its Users, and shall ensure compliance with the terms of this Agreement by its Users.
Control. Northpass reserves the right to modify or remove Customer Content that violates or allegedly violates this Agreement, as determined in Northpass’s sole discretion, and shall not be liable for any such removal or modification. Northpass reserves the right to terminate the account or access right of any User that violates or allegedly violates this Agreement. Without limiting the foregoing or assuming additional legal obligations, Northpass has a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
OWNERSHIP Northpass retains all right, title and interest in and to the Software. Title to and ownership of any modifications or customizations of the Software shall be held exclusively by Northpass, regardless of whether such modifications or customizations were requested by Customer or incorporate ideas, feedback or comments supplied by Customer.
Customer Content. All Customer Content is and shall remain the property of Customer or the applicable third party. In order for Northpass to process, distribute and handle Customer Content on behalf of or at the direction of Customer, Northpass is required to have a legal license to the Customer Content; thus, Customer grants to Northpass a nonexclusive, worldwide, royalty-free license to use, reproduce, modify, and prepare derivative works of the Customer Content for the Term of this Agreement and in connection with its provision of the Services to Customer and its Users. To the extent necessary, Customer shall procure an appropriate license to Customer Content from its Users to enable Customer to grant the foregoing license.
PAYMENT Terms of Payment; Method. Customer shall pay all Compensation owed to Northpass, as identified in the Order Form, at the times identified in the Order Form. Payments shall be made in U.S. Dollars. Payment can be made by sending a check or by electronic funds transfer to the address and/or account referenced on the Order Form. The Northpass invoice number must be referenced on all payments.
Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
Suspension of Services. In the event that Customer is late in payment, Northpass may, in addition to any other rights it may have hereunder and at law, suspend Customer’s access to the Software upon providing fifteen (15) days prior written notice (which may be provided by email). The suspension may continue until such time as Customer has paid all obligations in full.
Taxes. Except for assessments based on Northpass’s net income, all fees payable hereunder are net of all taxes and other governmental duties and fees of any kind (e.g., sales tax, use taxes, excise or VAT) ( “Taxes” ). Any and all applicable Taxes shall be borne by Customer.
CONFIDENTIALITY General. It is anticipated that the Parties may exchange certain proprietary information necessary to carry out obligations set forth hereunder and/or to discuss specific opportunities for additional or revised Order Forms between the Parties. In order for each Party to access, use and track the other Party’s proprietary information, the Parties agree as follows:
Definition. “Confidential Information” as used in this Agreement means any and all information disclosed by a Party (each a “Discloser” ) to the other Party (each a “Recipient” ), provided: (x) if such information is disclosed in tangible form, it is conspicuously marked to identify its confidential or proprietary nature; or (y) if such information is disclosed orally or by other intangible means, it is identified as confidential at the time of disclosure. Notwithstanding the foregoing, the Software is deemed to be Northpass's Confidential Information. Confidential Information shall not include information that:was generally known or available at the time it was disclosed or has subsequently become generally known or available legally and through no fault of Recipient; was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; is independently developed by Recipient without use of Discloser’s Confidential Information as documented by competent records; or
was communicated by Discloser to an unaffiliated third party free of any obligation of confidence.
Use Limitations; Nondisclosure Obligation; Duty of Care. Each Party agrees as a Recipient: (i) not to use Confidential Information for any purpose except as in furtherance of its rights or obligations hereunder; (ii) that it shall disclose Confidential Information only to its employees, contractors or consultants, or those of its affiliates, who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions at least as restrictive as those of this section; and (iii) to treat all Confidential Information with the same degree of care as it accords its own confidential information of a similar nature, but in no case less than with a reasonable degree of care. A breach of these obligations may result in irreparable and continuing damage to the Discloser for which there may be no adequate remedy at law, and, in the event thereof, Discloser shall be entitled to seek injunctive or other equitable relief as may be appropriate. The foregoing obligations shall continue for the duration of the Term of Use and for a period of two (2) years thereafter, except as to the obligations concerning the Software, which shall not expire except in accordance with the exceptions identified in Section 5(b) above.
Disclosures Required by Law. Recipient may disclose Confidential Information as and to the extent required by a valid order of a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either Party under this Agreement. Where permitted by law, the Recipient shall give the Discloser prior notice of any court or governmentally compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a Party, and the Discloser is not contesting the release of the information, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information provided that any such costs are agreed with the Discloser in advance of incurring them.
Data Collection. Customer agrees that Northpass may monitor Customer’s and its Users’ use of the Software and collect and use data and related information, including but not limited to information about Customer’s and its Users’ use of the Software (“Usage Data”), which may be gathered periodically to ensure compliance with this Agreement, to facilitate the provision of updates, product support and other services (if any), and for Northpass’s other internal purposes. All Usage Data will be considered Customer’s Confidential Information, unless such Usage Data is in aggregate, non-identifiable form, in a way that does not identify Customer as the source of such Usage Data.
Customer’s access to the Northpass Software Services will be through a log-in to Northpass’s private portal with the usernames and passwords Customer selects or which are assigned to Customer. Only Customer’s manager designated to oversee operation of the Software Services may use the username and password to access the Software Services. Customer must keep the usernames and passwords, and any other information needed to access the Software Services and other information on Northpass’s private portal confidential and secure. Customer will promptly deactivate the user account of any individual no longer tasked with the use of the portal. Northpass is not responsible for any unauthorized access to Customer’s account and any ramifications of such access, and may take no action to disable any account for unauthorized access until given written notice by Customer. Once notified by Customer, Northpass will take reasonable efforts to disable, lock or otherwise prevent continued unauthorized access.
INDEMNIFICATION Northpass Indemnification of Customer. Northpass agrees to defend and indemnify Customer, its employees, directors, contractors, and assigns from and against any claims and costs incurred by Customer in connection with the Software that claim is attributable to any intellectual property right infringed or misappropriated by the Software (excluding the Customer Content distributed by and through the Software). The foregoing indemnification obligation is subject to Customer: (i) providing prompt written notice of any claim for which defense is sought, (ii) tendering control of such defense to Northpass, provided that Northpass may not settle or make any admissions on behalf of Customer that would have a material adverse impact on Customer, and (iii) providing reasonable assistance and information at reasonable cost to Northpass. Nothing herein shall restrict Customer’s right to participate in any such defense at its own expense.Northpass Options . If an action is brought under this section, or if Northpass reasonably determines in its discretion that such a claim is likely to be made, Northpass may, at its option, (i) replace or modify the Software so it is no longer infringing but is functionally equivalent without material adverse impact on Customer, or (ii) obtain for Customer the right to continue receiving access to the Software.
Exclusions . The indemnification obligation under this section will not apply to any claim arising from: (i) modification of the Software by Parties other than Northpass (or its authorized subcontractors or affiliates), or (ii) any Customer Content distributed through the Software. Sole Remedy . NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE INDEMNIFICATION OBLIGATION UNDER SECTION STATES Northpass’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Customer indemnification of Northpass. Customer agrees to defend, indemnify and hold harmless Northpass, its employees, directors, contractors, and assigns from and against any claims and costs, including reasonable attorney and expert fees and costs incurred by Northpass in connection with allegations or claims relating to (i) Customer Content, (ii) all use of, and activities and postings on and through Customer’s implementation of the Software (iii) and any breach of Customer’s representations, warranties or obligations under or in this Agreement. The foregoing indemnification obligation is subject to Northpass: (1) providing prompt written notice of any claim for which defense is sought, (2) tendering control of such defense to Customer, provided that Customer may not settle or make any admissions on behalf of Northpass that would have a material adverse impact on Northpass, and (3) providing reasonable assistance and information. Nothing herein shall restrict Northpass’s right to participate in any such defense at its own expense. If such an action is brought and is based on a third party claim of infringement of an intellectual property right, or Customer reasonably determines in its discretion that such a claim is likely to be made, Customer may, at its option, replace or modify the Customer Content so it is no longer infringing but functionally equivalent, or may obtain the right to continue using the Customer Content.
WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY
Northpass warrants that the Software will function substantially in accordance with the online "help" documentation provided by Northpass, with regard to the then-current Software version only. Northpass does not warrant that all Software features will be documented. Northpass does not warrant that the Software will operate without outages or will be free from software "bugs" or any operational errors.
EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREUNDER, THE SOFTWARE AND ALL SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, AND Northpass MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
OTHER THAN ARISING FROM VIOLATIONS OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE RELATING TO LOSS OF USE, INTERRUPTION OF BUSINESS AND/OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY RELATED TO THE INDEMNIFICATION OBLIGATIONS HEREUNDER WHICH SUCH LIABILITY SHALL BE CAPPED AT ONE MILLION DOLLARS ($1,000,000) IN THE AGGREGATE, NEITHER PARTY’S AGGREGATE LIABILITY HEREUNDER SHALL EXCEED THE TOTAL COMPENSATION PAID OR OWED TO Northpass OVER THE TWELVE (12) MONTHS PRECEDING THE CLAIM TO WHICH ANY SUCH LIABILITY RELATES.
TERM AND TERMINATION Term; Renewal. This Agreement shall commence on the Effective Date and remain in full force and effect through the date identified on the Order Form (the “ Original Term ”), unless terminated in accordance with its terms. Upon expiration, the Order Form shall automatically renew for a period equal to its original length (each a “ Renewal Term ”, together with the Original Term, the “ Term ”), unless Customer notifies Northpass no less than sixty (60) days prior to the expiration of the then-current Term.
Termination. This Agreement may be terminated: (i) as identified in an Order Form, (ii) immediately by Northpass in the event Customer breaches the license grant in Section 2(a) or fails to make payments when due and does not remedy such failure within fifteen (15) days of the unpaid invoice date; (iii) by either Party in the event of a material breach by the other Party, if such breach remains uncured for ten (10) days following written notice thereof; or (iv) by either Party in the event voluntary or involuntary insolvency proceedings are sought or instituted against the other Party.
Effect of Termination. In the event that Northpass terminates this Agreement for convenience and without cause, Northpass will issue Customer a pro-rata refund for any pre-paid portion of the then-current Term that post-dates termination. No refund is available for termination for any other cause. In the event this Agreement is terminated for any reason or expires, (i) all licenses and access to the Software shall immediately cease; (ii) except as required by law, Northpass shall not retain or access any Customer Content; and (iii) Customer shall pay Northpass all Compensation due under the Order Form up to the effective date of termination. Sections 4, 6 and 9-11 will survive any expiration or termination.
MISCELLANEOUSEntire Agreement; No Waiver; Severability. This Agreement (including its exhibits or attachments) constitutes the Parties’ entire understanding and agreement with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations and understandings between the Parties regarding the subject matter hereof, including without limitation any request for proposal (RFP), purchase order, or other preprinted terms or documents provided by either Party. Any conflict between the terms of this Agreement and any Order Form shall be resolved in favor of the terms of this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the Parties hereto. This Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the Party to be bound.
Authorization and Compliance with Law. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a Party or by which it is otherwise bound.
Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New Jersey without application of its conflicts of laws principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application hereto. In any proceeding relating hereto, the Parties agree and hereby submit to the exclusive jurisdiction of the state and federal courts nearest to or in Morris County, New Jersey.
Compliance with Export Laws. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software. Without limiting the foregoing, Customer warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not use, export or re-export the Software in violation of any U.S. export embargo, prohibition or restriction.
Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing herein creates a relationship of employer and employee, principal and agent, partnership or the like between Customer, Northpass, or any of their affiliates or personnel. Neither Party will have authority to enter into any contract on behalf of the other.
Assignment. Either Party may assign this Agreement in the case of a merger, acquisition or corporate reorganization to a successor-in-interest of all or substantially all of that Party’s assets. All other assignments are prohibited, and any such assignment shall be null and void unless the Parties agree in writing.
Force Majeure. Neither Party shall be liable to the other for delayed performance caused by events outside of its reasonable control, including war, civil unrest, fire, earthquake or other natural disaster; provided that the Party affected by such force majeure provides prompt notice to the other Party of the occurrence and uses reasonable efforts to overcome the effects of such force majeure.
Notices. Any notice permitted or required under this Agreement shall be in writing and sent to the receiving Party’s address stated herein, or as subsequently provided in writing. Notices shall be deemed to have been duly given upon delivery when sent by a recognized courier service providing proof of delivery, postal service express mail, or certified mail, return receipt requested.
Publicity. The Parties shall mutually agree on the timing and approve any public disclosure of the Parties' relationship hereunder. In the absence of such agreement, neither Party shall publicly disclose the nature of the Parties' relationship hereunder. Neither Party shall use the other Party's name, marks, or logos in relation to any product or service branding, packaging or advertising without that Party’s prior written consent.
Execution. This Agreement may be executed by Customer signing the Order Form.